Abel Mohamed Badie v Government of Kuwait & Ors

Statutory extradition appeals under the Extradition Act 2003 are appeals by way of review, not rehearings. An appellate court should not interfere with factual or evaluative findings unless they are plainly wrong or outside the range of reasonable disagreement.

An assurance from a friendly foreign government governed by the rule of law is presumed to be given in good faith, absent cogent contrary evidence. Its sufficiency is a fact-sensitive assessment of whether there remains a real risk of treatment contrary to article 3. A specific assurance concerning detention in an identified compliant cell may be adequately monitored through access to lawyers and telephone contact.

Extradition will rarely breach article 8, given the strong public interest in honouring extradition obligations. Abuse of process requires cogent evidence of usurpation of the statutory regime and resulting unfairness or injustice.

The appellant challenged two decisions concerning extradition requests made by Kuwait. District Judge Snow sent the first request, concerning fraud and money laundering, and the second request, concerning an absconding-related offence, to the Secretary of State under the Extradition Act 2003. The Secretary of State ordered extradition in relation to the first request.

The appellant challenged findings concerning article 3 prison conditions, risk of torture, article 8, mental condition under section 91, alleged abuse of process, and specialty arrangements. By the time of the appeal, he had been discharged in respect of the second request because the statutory time limit had expired. The central issues were whether the lower decisions were wrong on the evidence and whether extradition on the first request could lawfully proceed.

1. Approach to the appeals. The appeals under sections 103 and 108 of the Extradition Act 2003 were by way of review. The court would interfere with factual or evaluative conclusions only for an identifiable error or where the conclusion was plainly wrong, meaning that no reasonable judge could have reached it. The restrictive approach applied with full force to extradition appeals.
2. Article 3 and prison conditions. The test was whether there were substantial grounds for believing that extradition created a real risk of treatment contrary to article 3. The assurances that the appellant would be detained in a specified cell in compliant prison blocks were specific and binding. The Othman factors were non-exhaustive and formed part of a single fact-sensitive inquiry directed to the practical operation of the assurances. Monitoring by lawyers and telephone contact could be sufficient where compliance was readily verifiable. Shmatko did not establish that lawyer monitoring was never relevant.
3. The judge was entitled to presume that Kuwait’s assurances were given in good faith and would be honoured. The criticisms relied on isolated evidence from other prison areas and did not show that the judge’s conclusion was plainly wrong. The article 3 prison-conditions ground therefore failed.
4. Risk of torture. The judge was entitled to reject the appellant’s account and to accept that post-traumatic stress disorder could coexist with rejection of the alleged torture as its cause. The fresh evidence was incapable of being decisive. The appellant had not shown a real risk of torture or inhuman or degrading treatment.
5. Article 8 and section 91. The strong public interest in extradition meant that incompatibility under article 8 required an exceptionally severe impact. The family circumstances and mental-health evidence did not approach that threshold. The section 91 case depended on the rejected torture account and also failed.
6. Abuse of process and specialty. Kuwait’s failure to issue a second request earlier resulted from misunderstanding, not bad faith or usurpation of the statutory regime, and caused no unfairness. Article 11 of the Treaty supplied specialty arrangements. The error did not amount to compelling evidence that Kuwait would disregard its obligations.
7. Disposition. Both appeals were dismissed.

• District Judge: On 29 September 2023 District Judge Snow sent the extradition cases to the Secretary of State under section 87(3) of the Extradition Act 2003.
• Secretary of State for the Home Department: On 7 November 2023 the Secretary of State ordered extradition in respect of the first request.
• High Court (Administrative Court): Both appeals were dismissed. The appellant had already been discharged in respect of the second request under section 99(2) of the Extradition Act 2003.