Lodhi v Secretary of State for the Home Department

In extradition proceedings, the court must decide Convention issues for itself. It does not review the Secretary of State’s assessment of Articles 3, 5, 6 or 8 ECHR. A real risk under Article 3 means substantial grounds for believing that prohibited treatment is a real possibility, assessed against the whole evidence, including the reliability and verifiability of assurances from the requesting state.

General evidence of abuse may establish a real risk when reinforced by specific evidence concerning the claimant, his associates and similarly placed detainees. Article 6 is engaged only by a real risk of a fundamentally unfair trial amounting to a flagrant denial of justice. Under section 6 of the Extradition Act 1989, discriminatory treatment during imprisonment may constitute prejudice on grounds of race or nationality, even where the sentence itself is not discriminatory.

The claimant, a Pakistani national, challenged the Secretary of State’s decision under section 12 of the Extradition Act 1989 ordering his return to the United Arab Emirates to face a retrial for serious drug offences. He relied on Articles 3, 5, 6 and 8 ECHR, and on sections 6 and 12 of the 1989 Act.

Earlier Divisional Court proceedings had quashed his committal on a narrow evidential ground and had considered, but did not finally determine for present purposes, the Convention issues. The central questions were whether return created a real risk of prohibited treatment or a flagrantly unfair trial, and whether the Secretary of State’s conclusions under sections 6 and 12 were lawful.

1. Convention issues. The court decided the Articles 3, 5, 6 and 8 issues for itself. Its function under the Convention was not an intensive review of the Secretary of State’s decision. The decisions under sections 6 and 12 remained subject to ordinary judicial review.
2. Article 3. The applicable question was whether there were substantial grounds for believing that return would expose the claimant to a real risk of torture or treatment reaching the high threshold of inhuman or degrading treatment. The evidence showed repeated and mutually reinforcing accounts of torture, brutality, discriminatory treatment of Pakistani and other sub-continental nationals, poor detention conditions and improper pressure during questioning. The evidence concerning the claimant’s colleagues, relatives and co-defendants was particularly significant because it related largely to Dubai and to the same investigation and charges.
3. The assurances against torture and ill-treatment were not given in bad faith, but they were general, did not address the location or duration of pre-trial detention or responsibility for questioning, and could not be independently verified. They did not sufficiently reduce the real risk. The extradition decision was therefore quashed.
4. Article 6. The court applied the test that return would breach Article 6 only where there were substantial grounds for believing both that the claimant faced a real risk of a fundamental breach of fair-trial principles and that this would lead to a miscarriage of justice amounting to a flagrant violation of fundamental rights. The evidence did not establish that the deficiencies in judicial independence, possible use of coerced statements, witness availability or interpretation would produce a trial amounting to such a nullification.
5. Sections 6 and 12. The Secretary of State’s conclusion that trial prejudice on grounds of race or nationality was not established was reasonable. Her conclusion concerning punishment was unlawful because the evidence showed a real and routine risk of discriminatory treatment in detention. The bad-faith and delay grounds under section 12 were not made out. The decision was quashed on Article 3 and section 6 grounds.

The judgment records earlier proceedings in the same extradition matter:

• Divisional Court — on 13 March 2001, allowed habeas corpus on the narrow ground that no prima facie case had been established on evidence admissible in English law.
• Divisional Court — in 2002, considered further evidence concerning treatment and detention conditions.
• High Court (Administrative Court) — quashed the Secretary of State’s decision ordering extradition, principally because return would breach Article 3 ECHR and because detention treatment would prejudice the claimant on grounds of race or nationality under section 6 of the Extradition Act 1989.