[2025] EWHC 2783 (Admin)

Fecha: 29-Oct-2025

The Judge’s judgment

The Judge’s judgment

42.

The Judge set out the law on article 3 compliance at [164]-[172] before going on to consider the evidence and his conclusions in relation both to torture by physical abuse and prison conditions. No criticism was advanced in this appeal of his identification of the relevant legal principles which he said he was applying.

43.

He recited in some detail the evidence of the prison experts Dr Mitchell and Professor Morgan in their reports and their oral evidence, and evidence from the Government of Kuwait as to prison conditions, at [352]-[361]. At [367] he found that Mr Badie had provided cogent evidence of a real risk of a breach of his article 3 rights if detained in the Central or General Prisons because of gross overcrowding. He then expressed his reasoning and conclusions on this issue in the following terms:

“368.
The Government has demonstrated good faith by:
a)
The authorities being helpful and taking the prison visits seriously.
b)
Allowing the prison experts to visit all parts of the prison, not only the cell in which the defendant will be detained.
c)
Allowing the experts private access to prisoners who they were permitted to select.
d)
Making significant efforts to provide the statistical information requested.

369.

I accept the “particularly positive impression in respect of healthcare staffing, equipment and the range of services available to patients including both urgent and continuing care” form by Dr Mitchell, accurately reflects the high standard of health care that will be available to the defendant.

370.

I accept that Assurances have been given which will eliminate the risk of detention in conditions that breach Article 3 by the Assistant Under-Secretaries who are able to give that Assurance on behalf of the State.

…

372.

I am satisfied that the Assurance removes the risk and provides the protection. I am satisfied that but for the Assurance there would be a real risk of non-compliant treatment. I must therefore assess the adequacy of the assurance applying the Othman criteria. whether the terms of the assurances have been disclosed to the Court…;

(i)

whether the assurances are specific or are general and vague…;

I am satisfied that the assurance is specific. The cell where Mr Badie will be detained for the entire period that he will be detained has been identified (photographs have been provided of it).

(ii)

who has given the assurances and whether that person can bind the receiving State…;

I am satisfied that Faisal Almikad and Major General Al-Mulla [the officials at the Interior Ministry who gave the assurances] can bind Kuwait.

(iii)

if the assurances have been issued by the central government of the receiving State, whether local authorities can be expected to abide by them…;

I am satisfied that they can.

(iv)

whether the assurances concerns treatment which is legal or illegal in the receiving State…;

Torture is illegal in Kuwait. The Assurance does not directly confront that issue, but does indirectly as the consequence of compliance with it is that the defendant will not be exposed to the risk.

(v)

whether they have been given by a Contracting State…;

Kuwait is not a contracting state.

(vi)

the length and strength of bilateral relations between the sending and receiving States, including the receiving State’s record in abiding by similar assurances…;

The extradition treaty has recently come into force. The Assurances in this case are the first that they have given to this country. I am satisfied that Kuwait has a genuine interest in insuring compliance with the Assurance, the State will be aware that future extradition requests will be imperilled by breach.

(vii)

whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant’s lawyers…;

I accept that monitoring is generally unsatisfactory. Kuwait have not signed the Operational Protocol, the National Preventative Mechanism has not been created and there is no independent inspectorate. The Red Cross and Red Crescent both have access, but they are not prison monitoring bodies and their reports are not publicly available.

However, it is important to put monitoring into the context of the real risks that exist in this case. They would only arise if the defendant were transferred from cell 16. Monitoring is therefore straightforward. The defendant will have access to his lawyers and unlimited telephone calls. Any attempt to move him in breach of the Assurance could quickly be brought to the attention of the authorities and enforced.

I am satisfied that the limited nature of the monitoring is not of significance in this case.

(viii)

whether there is an effective system of protection against torture in the receiving State, including whether it is willing to cooperate with international monitoring mechanisms (including international human rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible…;

See above.

(ix)

whether the applicant has previously been ill-treated in the receiving State…;

He has not.

(x)

whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State…”

There is no evidence that this has occurred.

374.

In my judgment, I am entitled to rely on the assurances provided by the Government. Kuwait is a friendly foreign government of a state governed by the rule of law. This court understands these assurances to have been provided in good faith. I do not consider that there is cogent evidence which calls them into question.

375.

In my judgment, the assurances provided by the Government are clear, binding and sufficient. I am therefore satisfied that the defendant is not at real risk of being subjected to treatment in Kuwait which breach Article 3 of the European Convention.”