[2025] EWHC 2783 (Admin)

The allegation of conduct amounting to abuse of process is that prior to the issue of the second extradition request on 15 June 2023, the Government of Kuwait was deliberately seeking to use the first request to extradite Mr Badie to face imprisonment for a further five years for the absconding offence in breach of its Treaty obligations in respect of specialty. Specialty protection is a fundamental principle of extradition law, which, put simply, means that a person shall only be tried or punished after extradition for the criminal conduct for which extradition took place, subject to limited exceptions.

The specialty obligations in the Treaty are set out at Article 11 as follows:

“1)

A person extradited under this Treaty may not be detained, tried or punished by the Requesting Party for any offence committed before extradition save for:

a)

any offence in respect of which the person has been extradited;

b)

any offence disclosed by the information submitted by the Requesting Party in respect of an offence for which the person has been extradited, provided that:

i.

any such offence is not one in respect of which the death penalty can be imposed; and

ii.

any such offence is itself an extraditable offence within the meaning of Article 2 of this Treaty; or

c)

any offence in respect of which the Requested Party consents to the person’s detention, trial or punishment.

2)

A person extradited under this Treaty may not be the subject of onward extradition to a third State for any offence committed prior to extradition to the

Requesting Party unless the Requested Party consents.

3)

Paragraphs 1 and 2 of this Article shall not prevent a person being detained, tried or punished in respect of an offence committed before extradition where that person :

a)

has left the territory of the Requesting Party after the extradition but has voluntarily returned to it; or

b)

has not left the territory of the Requesting Party having been given an opportunity to do so.

4)

Where a request for the purpose of subparagraph (1c) of this Article is made, the Requested Party may require the submission of the documents called for in Article 5 of this Treaty.”

The relevant chronology is that when the first extradition request was made, Mr Badie had not yet been convicted of the absconding offence, the conviction being some two months later on 29 July 2021. The prosecution of that offence was handled by the regional prosecuting department within the State of Kuwait. The matter came to the attention of the International Cooperation Department in the State of Kuwait in December 2021, which said in an information memorandum sent to the Crown Prosecution Service (‘CPS’) on 21 December 2021: “We would also like to inform you that the Ministry of the Interior in the State of Kuwait have found that the said defendant and others have illegally fled the country through Al Salmi borders prior to the issuance of the Court of Appeal’s judgment in the said case (TMas).”

It is not clear when the conviction first came to Mr Badie’s attention, but it was before 16 January 2023 because on that date his counsel drew it to the attention of counsel for the Government of Kuwait at the beginning of the extradition hearing on the first request. Following a request for further information, the Government of Kuwait explained in its further information provided on 2 May 2023 that when the International Cooperation Department had referred to the finding by the Ministry of the Interior in its December 2021 communication it had done so because the Minister of the Interior was responsible for the detection and prevention of criminal offences. It went on:

“The State of Kuwait assumed that the CPS was aware that this referred to a criminal case. In the State of Kuwait, leaving the jurisdiction in breach of a travel ban is a criminal offence and it was understood this is also the case in other jurisdictions, including in the UK and so this information would be readily understood to refer to a separate criminal case. It was assumed there was dual criminality with the United Kingdom for this act and that there was a comparable offence.”

It then said:

“3.

It is understood that an Extradition Request is being prepared in relation to the 2021 conviction of Mr Badie. Why has that Request not been served before now?

The International Cooperation Prosecution disclosed - as stated in the answer of question 2 - the case and did not receive from the British authorities a request for further information regarding the case until January 2023, when the British authorities stated that the information revealed by the Kuwaiti authorities is not sufficient to apply item (b) of Article 11 of the Extradition Agreement between the State of Kuwait and the United Kingdom.”

It also said:

“The State of Kuwait did not deliberately withhold the fact of the prosecution and subsequent conviction in absence of Mr Badie in 2021, and had and has no intention to deal with Mr Badie in any manner contrary to the terms of the Extradition Treaty between the Governments of the United Kingdom and the State of Kuwait and the principle of speciality.”