[2025] EWHC 2783 (Admin)

The first extradition request identifies the offences as fraud and money laundering committed between 1 January 2014 and 1 January 2016 in which Mr Badie and a number of co-defendants dishonestly promoted investment in a real estate project offered by T-Mas Real Estate Company, in which housing units in Turkey and UAE which did not exist were marketed and sold. Mr Badie was a marketer in the real estate marketing department at T-Mas Real Estate Company, for whom a number of his co-defendants also worked. The total amount of the fraud was some KD109 million, equivalent to about £243 million at 2016 exchange rates. The proceeds were laundered through a number of Kuwaiti banks with the proceeds being paid into personal accounts of the defendants, including in excess of KD590,000 received by Mr Badie.

According to his proof of evidence, Mr Badie was asked to attend the office of the Kuwait State Security Force (‘KSSF’) on 18 October 2016 and voluntarily did so. Later that day he was taken to the prosecutor’s office. He was put in a KSSF cell overnight and returned to the prosecutor’s office the next day. That night he was again put in a KSSF cell and returned to the prosecutor’s office the following day, 20 October. This pattern was repeated until 24 October when he and a number of his co-accused were taken to what he describes as Central Prison. There is only one prison complex in Kuwait, situated in Kuwait city. It comprises three separate prisons. One is a women’s prison and two are men’s prisons. The latter comprise what is called the General prison, which houses those on remand and those convicted of misdemeanours, and what is called the Central Prison, which houses prisoners convicted of felonies. Since Mr Badie was on remand at this time, it is to be assumed that he is referring to the General Prison.

The criminal proceedings against him commenced on 16 November 2016. He remained on remand until 26 January 2017. On that date there was a court hearing at which he was present in which he was granted bail with conditions which included a travel ban.

Mr Badie alleged that he was subjected to torture by the KSSF, those in the prosecutor’s office, and prison officers between 18 October 2016 and 26 January 2017. The Judge found that such allegations were not true, which is one of the findings challenged on this appeal.

On 5 January 2018, before the trial had taken place, Mr Badie and a number of his co-defendants left Kuwait across the land border crossing with Saudi Arabia at Al Salmi.

On 28 January 2018 the Kuwait Criminal Court acquitted Mr Badie. The Prosecutor appealed. Mr Badie was represented by his lawyer in the appeal hearing but was not present. The appeal was by way of a retrial de novo. Mr Badie was convicted and sentenced to 5 years imprisonment in a decision of the Court of Appeal dated 17 February 2019. Mr Badie appealed to the Court of Cassation which dismissed his appeal on 19 July 2020.

As we have said, the Treaty between the UK and Kuwait came into force in March 2021 and on 25 May 2021 the first extradition request was made. Some two months later, on 29 July 2021, Mr Badie was convicted of the offence which became the subject matter of the second extradition request involving his absconding on 5 January 2018 in breach of his bail conditions, and sentenced to a consecutive term of imprisonment of a further 5 years. The offence charged was not that of breaching bail conditions as such, but of (in effect) conspiracy to corrupt public officials so as to enable him to evade the travel ban and leave the country. We shall refer to it as the absconding offence. The details of that offence are set out in the Judge’s judgment at some length but we do not need to repeat them. It was common ground before him, and the Government of Kuwait accepted, that Mr Badie was not present or a fugitive from justice in relation to that trial and so any extradition in relation to that alleged offence would be subject to his having a retrial in Kuwait. By contrast, there was a disputed issue before the DJ as to whether he was a fugitive from justice in relation to the fraud offence, which the DJ resolved in favour of the Government of Kuwait, holding that Mr Badie had lied about matters relevant to that issue. There is no appeal against that finding.

The extradition hearing on the first extradition request commenced before the Judge on 16 January 2023 with both parties represented by leading and junior counsel. The hearing was also concerned with a request for extradition of another person which was unrelated but listed together because both cases involved issues about prison conditions and article 3 ECHR. The case was opened on behalf of Mr Badie and he commenced his evidence. On 20 January 2023 he attended hospital overnight claiming to have taken 9 paracetamol in a suicide attempt. The hearing was adjourned and he was assessed by medical experts. Mr Badie refused to return to the witness box. In due course the Judge heard a substantial body of medical and other evidence about this and concluded that this was a feigned suicide attempt designed to derail the proceedings and avoid further probing questions in cross-examination.

The hearing took place on 16 to 20 January, 6 to 13 February, 5 to 7 July, 17 to 21 July (excluding 19) and 4 to 7 September 2023. By the time of the July resumption, the second extradition request had been issued on 15 June 2023, relating to the offence involving leaving the country in breach of the travel ban. In January Mr Badie’s leading counsel had drawn to the attention of his opponent a document referring to this conviction and sentence. Counsel for the Government of Kuwait took instructions and indicated thereafter that the Government of Kuwait intended to make a second request. The second request was duly made and was dealt with as part of the hearing resumed in July 2023, in which similar challenges were made on behalf of Mr Badie to those in respect of the first request (together with an argument that there was no prima facie case in relation to that offence, which failed and is not the subject of appeal). We will deal with the circumstances in which the Government of Kuwait initially sought to pursue the first request without issuing a second request under grounds 6 and 7 of the appeals.

The Judge’s judgment, delivered with commendable speed on 29 September 2023, is a careful and detailed analysis of the many issues he had to decide, running to 447 paragraphs over 256 pages. The challenges which he rejected and which are or were the subject matter of these appeals were the following:

We will address the Judge’s reasoning on each of these challenges when dealing with the grounds individually. It is convenient here to identify the witness evidence before him to which we will later make reference.

There were two proofs of evidence from Mr Badie who gave evidence in chief and was in part cross-examined before refusing to answer further questions. The Judge found him to be an unreliable witness who in a number of respects had deliberately lied. There was a statement from his wife who was not tendered as a witness, for which there was no explanation proffered.

There were experienced and well-respected experts on prison conditions by reference to the standards required to comply with article 3 ECHR. They were Dr Mitchell for Mr Badie and Professor Morgan for the Government of Kuwait. They gave oral evidence and were cross-examined. They had visited the prison complex in Kuwait together in 2017 in relation to a different case and their first reports addressed the prison conditions observed on that occasion as well as published literature. Both opined that there was severe overcrowding with lack of access to appropriate toilet and washing facilities in at least some parts of the General and Central prison together with evidence of poor material conditions, and which amounted to conditions which breached article 3 ECHR. That did not apply to block 4 in the Central prison. The Government of Kuwait gave formal assurances (‘the Assurances’) in two successive documents from officials at the Interior Ministry with responsibility for the prisons, the first by General Faisal Almikrad, and the second a successor, Major General Al-Mulla. They were in similar terms. They undertook on behalf of the State of Kuwait that if extradited Mr Badie would be held in cell 16 in block 4 of the Central Prison for the duration of his sentence, which he would have to himself, save for a brief period on arrival when he would be subject to a mental and physical medical assessment housed in Block 3 for 7-10 days. They also included assurances as to food, recreational and exercise facilities and physical and mental healthcare. Dr Mitchell and Professor Morgan visited the prison complex again in November 2022 and produced reports thereafter. They agreed that blocks 3 and 4 of the Central prison did not suffer from overcrowding or any other unsatisfactory physical conditions; that the healthcare facilities were more than satisfactory; and that should Mr Badie be held there in accordance with the assurances, the court could be confident that there would be no breach of article 3 in relation to the prison conditions in which he was held. Accordingly the focus of the argument in relation to prison conditions was whether the Assurances would be fulfilled.

As to risk of torture in Kuwait, Mr Badie relied on the evidence of Mr Davidson who purported to be an expert in that field. The Judge rejected his evidence on the grounds that he did not have the relevant expertise, was not independent and his evidence was not reliable. There is no challenge to that finding. His evidence is of residual relevance only by virtue of the open source material to which he referred, parts of which were relied on by both sides in the appeal.

There was medical evidence about Mr Badie from a number of sources. Psychiatric evidence was given on behalf of Mr Badie by Professor Forrester and on behalf of the Government of Kuwait by Dr Cumming. They gave oral evidence and were cross examined. In addition Mr Badie sought to rely on evidence from Dr Cohen as a forensic physician with extensive experience of victims of torture, domestic violence and trafficking. She is not a qualified psychologist or psychiatrist. The Judge was not impressed by her evidence and regarded her as lacking independence and in part giving evidence beyond her expertise. He placed no weight on her opinions. It remained of limited residual relevance because it refers to what she was told by Mr Badie which illustrated inconsistencies in his account of injuries allegedly suffered as a result of torture, including in particular an account that it involved his wrist being broken.

There was also oral evidence from orthopaedic experts on each side in relation to the allegation of the broken wrist, Mr Matthews for the Government of Kuwait and Mr Thomas for Mr Badie. The Judge concluded that Mr Badie had lied about his wrist having been broken whilst he was in custody. He had produced X-rays taken later in Iraq in August 2018, which the Judge concluded could not on the medical evidence have supported the injury occurring whilst he was in custody in Kuwait. This was, the Judge found, in an attempt to bolster the false allegation of torture.

There was also before the court a report prepared on Mr Badie’s behalf by a psychologist, Mr O’Doherty, dated 18 April 2021. This was not prepared for the purposes of these extradition proceedings (it predates the first request), but rather in support of Br Badie’s asylum claim. Mr O’Doherty did not give evidence. The significance of his report is that the Judge relied on the fact that it addressed Mr Badie’s psychological distress and attributed it not to anything which had happened in Kuwait, of which there was no mention, but to hearing about the murder of his brother in Iraq, treatment for testicular cancer, ongoing uncertainty and fear for his future safety and that of his wife if returned to Iraq.