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Cite as: [2010] ACD 65, [2010] EWHC 567 (Admin)

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Neutral Citation Number: [2010] EWHC 567 (Admin)
Case No: CO/7687/2008

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
19th March 2010

B e f o r e :

LORD JUSTICE LAWS
MR JUSTICE OUSELEY

____________________

Between:
MOHAMMED FAKHAR AL ZAMAN LODHI
Claimant
- and -

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Defendant

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(Transcript of the Handed Down Judgment of
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____________________

Edward Fitzgerald QC and Julian Knowles (instructed by Corker Binning) for the Claimant
Hugo Keith QC (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 16th and 17th November 2009

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. This is the judgment of the Court which has been prepared by Mr Justice Ouseley. The claimant, Mr Lodhi, is a national of Pakistan whose extradition is sought from the UK to the United Arab Emirates. It has been assumed that he would be returned to the Emirate of Dubai. He challenges the decision of the Secretary of State for the Home Department dated 30 June 2008, taken under s12 of the Extradition Act 1989, that he should be returned to the UAE. He does so principally in reliance on Articles 3, 5 and 6 ECHR, but he also relies on Article 8 ECHR, and on the provisions of sections 6 and 12 of the 1989 Act. These prohibit the Secretary of State ordering the return of someone who might be prejudiced in his trial or punishment because of his race or nationality, or where to return him would be unjust or oppressive by reason of the passage of time since the alleged offence, or because the accusation was not made in good faith in the interests of justice. This is not a habeas corpus application.
  2. In June 1999, Mr Lodhi was one of 24 defendants, 18 present and 6 absent like him, who were tried for serious drug offences in relation to the production, possession and supply of several tons of methaqualone, a component of a Class B drug known as Mandrax. 18 were convicted including Mr Lodhi. The offences were alleged to have been committed between December 1995 and June 1997. 6 were acquitted. 11, including Mr Lodhi, were sentenced to life imprisonment, with fines; the others received lesser sentences. Only those present could appeal but no appeals were successful.
  3. Mr Lodhi ran successful property development and construction machinery hire businesses in the UAE. On 25 June 1997 and very shortly after the Dubai police executed a search warrant at his home and at one of his warehouses, he fled the UAE for Singapore, and on 27 January 2000, he arrived in the UK under a false name and on a false passport. He was arrested straightaway.
  4. The first request for Mr Lodhi's extradition was made as long ago as 14 March 2000. The 1989 Act applied, and continues to apply, to this extradition because the offences involve serious drug offences under the UN Convention Against Illicit Traffic in Narcotic Substances, in force from 1 September 1997 by virtue of amendments to sections 4 and 22 of the 1989 Act, and the Extradition (Drug Trafficking) Order 1997. Since May 2008, the UAE has been a Category 2 state under the Extradition Act 2003, by an Order under that Act giving effect to the first Extradition Treaty between the UK and the UAE, signed in 2006. However, although that Order is not irrelevant to the issues which arise in this case, this case remains governed by the 1989 Act.
  5. Mr Lodhi's application for habeas corpus, following his committal by a District Judge, was allowed by the Divisional Court on 13 March 2001 on a very narrow ground. It ruled that no prima facie case on evidence admissible in English law had been proved. Mr Al Shaar, a convicted co-conspirator in prison in Dubai, who had made statements incriminating Mr Lodhi after conviction and sentence, was a crucial witness to the existence of a prima facie case against Mr Lodhi, on evidence admissible under English law. Mr Al Shaar had signed statements in English produced from what he had said in Arabic, which were then translated back to him in Arabic; these were inadmissible in English law. Instead the Court needed an Arabic version signed by him as his evidence, with an attested translation into English.
  6. The Divisional Court, Brooke LJ and Morison J, had rejected an array of arguments from Mr Fitzgerald QC and Mr Knowles, then as now for Mr Lodhi, which foreshadow some of the arguments presented to us. It concluded, on the basis of assurances from the Attorney General of Dubai, that Mr Lodhi would be returned to face a complete retrial. It was assured that the prosecutor intended to call or recall for cross-examination all those prosecution witnesses whom Mr Lodhi wished to have called. It considered the contention under s 6 (1)(d) of the 1989 Act to the effect that Mr Lodhi would be prejudiced in trial and punishment because he was a Pakistan national, which with additional evidence is repeated before us. In this context, general submissions were made to the Divisional Court about societal discrimination, judicial bias, ill-treatment, torture and various aspects of the way in which trials were conducted including the availability of interpreters. It concluded that, even if there were any grounds for believing that Mr Lodhi would be ill-treated on return, there were none for believing that that would be on the grounds of nationality. It is clear enough that the Court did not think that he would be ill-treated anyway on the material before it.
  7. Next, it considered briefly the effect of the ECHR on extradition. Although it referred to some of the ECtHR Article 3 jurisprudence, it expressed no conclusion about any breach of Article 3 on return, confining itself to expressing the view on Article 6 that there "was not the slightest danger …of a flagrant denial of a fair trial" even if certain features of the trial process would not be Convention compliant. It then rejected in short order the contention that Mr Lodhi's extradition was sought in bad faith, especially in the light of the detailed evidence of his involvement recounted in the judgment of the Dubai Court.
  8. Mr Keith QC for the Secretary of State pointed out that the Divisional Court must have reached the view that Article 3 would not be breached by the extradition of Mr Lodhi, in the course of its conclusions on the absence of prejudice on the grounds of nationality or race, and did reach the view that Article 6 would not be breached; much of what Mr Fitzgerald had to say was a repetition of what had already been rejected. Mr Fitzgerald submitted that the question of whether the extradition would breach the ECHR was not dealt with under the 1989 Act at the time of a habeas corpus application to challenge committal, but later, when the Secretary of State was deciding whether to order extradition, in the light of full evidence and argument. So the views of the Divisional Court in March 2001 on ECHR issues could not be regarded as weighty even then and certainly not now. Mr Fitzgerald is right. Plainly the Convention was directly relevant to what the Divisional Court said about Article 6 and, albeit indirectly, Article 3 was substantially relevant to its conclusions on the issue of prejudice on the grounds of nationality or race. However, in the convoluted 1989 Act procedures, that was not the stage at which those Convention arguments were to be fully deployed. It would be unfair to treat those ECHR issues as having been resolved by the Divisional Court in March 2001, even in relation to the position as at that time. We have to decide the ECHR issues afresh for ourselves on the material before us, which includes new material, and our consideration cannot be trammelled by the earlier decision of the Divisional Court.
  9. It is also for this Court to decide for itself whether or not the extradition of Mr Lodhi would breach Articles 3,5,6 or 8 ECHR; its role is not one of reviewing, however intensely, the reasonableness of the decision of the Secretary of State. That was agreed by the parties; and reflects the decision in McKinnon v SSHD [2009] EWHC 2021 para.66. The decision of the Secretary of State on the provisions of sections 6 and 12 of the 1989 Act is however for review only. The question of whether there is now a prima facie case against Mr Lodhi on evidence admissible in English law is not for consideration at present; such a case has to be shown, and indeed would still have to be shown under the new Treaty.
  10. Article 3 ECHR

  11. Mr Lodhi is facing removal from the UK, and it is alleged that the treatment which Article 3 prohibits would take place in the UAE. The question which has to be answered applying ECtHR jurisprudence, is whether there are substantial grounds for believing that there would be a real risk in the UAE that Mr Lodhi would be subjected to torture or other treatment which reached the high threshold necessary to constitute inhuman or degrading treatment or punishment. A real risk is more than a mere possibility but is less than a greater probability than not that an event would occur.
  12. We now turn to the evidence upon which Mr Fitzgerald relied with these preliminary observations. Since it was agreed that it was for us to decide for ourselves whether the extradition of Mr Lodhi would breach his human rights, we could consider material which was not before the Secretary of State when she made her decision last year. The UAE had not been served, although obvious interested parties in this application especially in the light of the strongly adverse views which we were asked to take into account by the claimant. We gave leave for them not to be served. We took the view that their interests would be sufficiently protected by the Secretary of State who did not argue that they should be served with the papers, with all the delay which that would have entailed. The correspondence between the Secretary of State and the UAE suggested strongly that they would have been aware of these proceedings and able to join in had they really wished to do so.
  13. The Constitution of the UAE prohibits torture and degrading treatment absolutely; it contains many conventional civil and political liberties. A Working Group of the UN Human Rights Council reported in January 2009 to the General Assembly on Human Rights in the UAE as part of its Universal Periodic Review. The UAE was thinking of signing the Convention against Torture, as it had been recommended to do, and setting up a Commission on Human Rights, looking to improve its record. Human rights were taught to police personnel. However, by March 2009, the UAE had decided to reject the recommendation that it sign the Convention against Torture and the main international conventions on human rights. They were seen as incompatible with its religious values. The UAE is one of only four Middle East countries not to have signed the former and one of only twenty one in the world not to have signed the International Covenant on Civil and Political Rights – not that a signature necessarily amounts to much in many of the signatory countries.
  14. The US State Department Report for 2008 on human rights in the UAE, published in 2009, said:
  15. "The constitution prohibits torture; however, there were unverifiable allegations of tortured political prisoners during the year, as well as reports that a royal family member tortured a foreign national who had allegedly overcharged him in a grain deal.
    There were also reports of prison guard brutality during the year. On July 9, a Dubai court sentenced 25 jail wardens and a former prison director of Dubai Central Detention Facility to three to six-month prison terms for abusing their authority and beating inmates. Among the allegations, wardens reportedly beat an Armenian inmate, leaving him with a spinal injury that led to permanent disability. The defendants appealed the ruling, and on November 18, the Dubai Court of Appeals suspended the sentences of the 25 jail wardens. At year's end the prison director's appeal was pending, and he was out on bail.
    c. Prison and Detention Conditions
    Prison conditions varied widely from emirate to emirate. Some prisons were overcrowded in Abu Dhabi and Dubai.
    Police in Dubai and Abu Dhabi stated that nongovernmental organizations (NGOs) and the International Committee of the Red Cross had access to observe prison conditions if requested. However, on September 21, when members of the NGO Emirates Human Rights Association (EHRA) went to visit female inmates at Dubai's Al-Aweer Detention Facility, prison authorities denied the monitors access "to protect the prisoners' social and psychological rights.
    Although charitable NGOs visited prisons during the year, they were only permitted to provide material support. They were unable to determine the welfare and well-being of the prisoners. However, some clergymen reported psychological abuse and frequent physical abuse of their imprisoned parishioners.
    d. Arbitrary arrest or Detention
    The constitution prohibits arbitrary arrest and detentions; however, there were reports that the government held persons in official custody without charge or a preliminary judicial hearing. Current law permits indefinite, routine, incommunicado detention without appeal. Under this procedure the detainee may contact only his or her attorney."
  16. The State Department Report for 2004 had been markedly more positive in tone, saying that there were no reports of torture by government officials, except for flogging as a punishment imposed by Shari'a courts; prison conditions generally met international standards; in Abu Dhabi and Dubai, police allowed NGOs to visit prisons to observe conditions if requested but none had asked to do so. Its Report for 2006 was in the same vein. Although it is possible that human rights in Dubai have worsened over the years, we consider the more likely explanation for the change in tone to be that more has come to light recently in an area where it is now apparent that access to custodial establishments for observation is very limited. The 2008 Report also refers by implication to at least one specific notorious incident which others record and to which we shall also refer.
  17. The FCO told Mr Lodhi's solicitors in response to a Freedom of Information request that it did have information about torture in the UAE but that it was exempt from disclosure. We think it reasonable in the light of all the evidence which we examined to suppose that that evidence confirms that torture takes place rather than that it does not. But nothing can be inferred about how frequently or in what circumstances. This answer is not of itself a weighty point. There is however no local academic research into the observance of human rights in practice.
  18. The 2009 Freedom House Report states that "… there is compelling evidence that members of the royal family and the country's police have used torture against political rivals and business associates." We shall return to that later in the context of risk factors specific to Mr Lodhi.
  19. Other material from NGOs deals with specific cases which probably, at least in part, underlie the general comments which we have cited. The 2009 Amnesty International Report on UAE records reports of torture and incommunicado detention, including the torture of two Pakistani brothers with electric shocks, among other forms of torture. We shall return to the significance of their nationality as a specific risk factor in Mr Lodhi's case. Claims of torture by those held in detention in the UAE are common according to AI. A US citizen was reported to have been tortured in connection with alleged terrorism. There had been earlier reports from AI of incommunicado detention. In October 2007, AI reported that an Emirates citizen charged with a secrets offence had been tortured in detention in Abu Dhabi by the security police. Those circumstances are not directly applicable to Mr Lodhi, but with other general evidence about the scale and nature of other human rights abuses in the UAE, they build a picture of a state which respects human rights in a very selective way. This is particularly important when considering the extent to which freedom of expression and public scrutiny could act as a check on the way in which Mr Lodhi might be treated.
  20. This evidence is at a rather general level and much is not specific to Dubai. But it was supported by specific instances, and we start with those not directly involved in this case. We take the essentially unchallenged material from the expert report and supplements produced on behalf of Mr Lodhi. (We have ordered that the name of the expert be not disclosed in order to protect his identity when travelling to parts of the Middle East.) We are not concerned with those cases in which Shari'a courts have ordered stoning or flogging for what they perceived as crimes of immorality, and which were not carried out, or in the case of flogging may not have been carried out. That is not a real risk for this claimant.
  21. A particular instance of torture occurred in about 2006; committed by Sheikh Issa, a well-placed member of the Abu Dhabi ruling family, and with the probable assistance of the police. A video of part of this has been shown quite widely on international and US television. It is probably what underlies the comments in the US State Department Report for 2008. Although this instance of torture was not committed during detention in any custodial facility, it appears to be part of a much more extensive pattern of brutality by Sheikh Issa, who was in business as a real property developer in Abu Dhabi. This evidence is relevant in two ways. First, the acts were said to have been committed against twenty five people at least, among them Sheikh Issa's employees including his business manager, a US citizen who was in dispute with him and who kept videos of at least some of the torture as an insurance policy lest something should go wrong in this relationship. One of the nastiest videos shows a gangland style attack with torture by Sheikh Issa, probably with police in support, on someone believed to be an Afghani grain dealer. As we shall come to, it is Mr Lodhi's case that he is facing trumped up charges brought because members of the large ruling families of two of the federated states, Sharjah and Umm al-Quwain, who were his local business sponsors wanted to expropriate his successful businesses because he is a foreigner. Second, although private settlements have been reached with the Afghani and some of the other victims, which the Abu Dhabi authorities said was permissible under its law and which it said closed the matter, strong US NGO representations, backed up by US reactions to pending deals, have led to UAE authorities carrying out an investigation, with the Sheikh under house arrest. Mr Lodhi had drawn parallels between how Sheikh Issa was treated and what he said appeared to be happening in his case too: no action by Dubai to enforce the sentence passed on a senior member of the ruling family of Umm al-Quwain, who was a defendant convicted in his absence for the same drug conspiracy - at the same trial - for which Mr Lodhi's extradition is sought. (We are aware of but have not sought submissions on the subsequent trial of Sheikh Issa where evidence was given of his mental state at the time, affected by medicinal drugs, and his acquittal. We have not seen the court's reasoned judgments. They have not affected our views).
  22. AI reported that a Pakistani national, Mr Usmani, had been tortured after his arrest by the security police in Dubai. The case of Mr Usmani was also raised during the debate in the House of Lords on the Order giving effect to the bilateral UK-UAE Extradition Treaty. The details provided in the debate include that Mr Usmani had lived in Dubai for over 12 years, that he had been discussing financial irregularities at his former employer with the Office of the Auditor, a quasi-judicial office under the control of the ruler of Dubai, that he was required to go to its offices seemingly to deal with a change in his employment sponsorship, but was detained and, he alleged, tortured. When he was released that day and taken home, he told his family of this in the presence of the men who had brought him back, at which point they took him away again. The Government response was that it was satisfied that there were sufficient protections for extradition but it would "properly review" the case of Mr Usmani. Further detail of the background and allegations are to be found in the Complaint or Particulars of Claim in a lawsuit brought on his behalf in the USA under the Alien Tort Claims Act. The background involves alleged large scale corruption in the Dubai banking system and closely related property development companies. Others, including a US national, have been arrested and held without charge for very long periods.
  23. After an AI appeal as to Mr Usmani's whereabouts, his family have been able to visit him, although that development was not known at the time his case was raised in the House of Lords. He was still in detention in early 2009, the last date as at which anything is known by this Court. The promised review by the Home Office has not been carried out; its result was asked for by Mr Lodhi's solicitors in January 2009, to which the April 2009 reply was that it had not been done because of a "regrettable administrative oversight". The FCO was now to carry it out, but no review had been concluded by the time we heard this case. The basis upon which the Government Minister invited the House to confirm the Order included the carrying out of that review. Its obvious purpose would be to inform the judgments to be made about individual cases of extradition to the UAE; the Minister had accepted in the debate that individual decisions would have to be made in each case.
  24. The claimant's expert's report draws on AI to note other individual cases in which both Emirates citizens and foreigners, whether on corruption or terrorist or unknown charges, have been held incommunicado for long periods without charge and some have made allegations of severe beatings or torture. One small note of caution is required about these cases: the factual reporting is of course of uncertain accuracy but the full picture of what has happened may not be available from one AI report. The brief reference to Mr Usmani in the expert's 2009 Report suggested that it was still a case of suspected enforced disappearance but the report on which that was based had been superseded in June 2008 by AI, following its successful appeal for information as to his whereabouts.
  25. Mr Smith, from the claimant's solicitors, points out that AI carries out only limited field work in the UAE, which led AI to believe that the cases it identified were only a fraction of the abuses actually occurring.
  26. In July 2009, a US citizen Mr Naji Hamden was tried in Abu Dhabi for terrorist offences. He had been running a car parts business in Abu Dhabi, where his family also was living. Observers from Alkarama, a Geneva-based human rights organisation, and Human Rights Watch among others, had gone to the UAE to attend his trial but at the last moment were excluded from it together with his US attorneys and all journalists. The observers were able to speak to him after the hearing and he told them that he had been tortured during three months incommunicado pre-trial detention, spelling out that he had been held in a cold underground room, regularly beaten on his soles, completely deprived of sleep for long periods, and threatened with reprisals against his family if he did not sign a false confession which was used against him at his trial.
  27. Mr Atkinson, a UK national, worked as an architect in Dubai with his family for eleven years. But in 1998, he was convicted of paying unlawful commissions and defrauding the Dubai government. He takes the view that charges were trumped up against him so that the Dubai authorities could take over his successful business. In 1994, he had signed a settlement agreement under threat of proceedings, giving all of his assets to the government in exchange for immunity from prosecution, but despite all that he was arrested on those charges when he returned to Dubai to assert his rights in a civil claim to a golf tournament. After thirteen months detention, during which time he was asked questions at random for long periods while going without food, he signed a statement in Arabic which he could not understand. The order of the court for bail was ignored.
  28. After conviction he was in prison for nearly 5 years. He could see how those in prison were punished: it was common for prisoners to be handcuffed and hung up by their hands so that they could barely stand on tip toe. This happened once to him for four hours. During this, the prisoners would often urinate or defecate. They would also be handcuffed to a pole and beaten with a piece of wood or truncheon, or stripped to their underwear and beaten. Mr Atkinson was once hit in the face by a policeman, and then hit on his bare back and legs with a truncheon. He described prison conditions as rat infested, filthy and overcrowded, severely so in the wing to which financial offenders were first sent, and in the drug users block where he was next sent. He provided the details: in the first, he had to sleep on the floor outside the cell with only two blankets; in the second, ten slept in an eight man cell and there were far too few showers or toilets. Locals were favoured over foreigners, and prison officers appeared uninterested in stopping them fighting Pakistanis. He also said that he did not benefit from early release when he should have done.
  29. What Mr Atkinson had to say in his witness statement, which formed part of the representations made to the Secretary of State, is supported by the evidence of Mr Bamling, whose witness statement also formed part of the representations before the Secretary of State. Mr Bamling, a UK national, worked in Abu Dhabi in 1998 with adults with special needs. He was convicted, wrongly he says, of alcohol and drugs offences. He was interrogated in handcuffs and leg irons without an interpreter, and signed a statement the true meaning of which he did not understand. He said that prisoners were regularly beaten, suspended by handcuffs, flogged, and kept in solitary confinement, with hands and feet shackled. The conditions made many people unwell and he only received treatment through the intervention of the UK Embassy. Pakistani and Indian prisoners were generally discriminated against by staff and local prisoners, although he was better off than they were as a UK national, who was helped by the Embassy.
  30. Ms Majakas, the head teacher of a special needs school in England and a friend of Mr Bamling's, was visiting him in Abu Dhabi when he was arrested. Her witness statement was also provided to the Secretary of State before she made her decision. She was coerced into signing a statement, poorly translated from Arabic which she did not understand. She wore handcuffs and ankle chains in court. She was convicted of the same offences as Mr Bamling, and although sentenced to a long period in prison, she too was pardoned and released at the end of 2000. In prison, she confirmed, the Pakistanis and other Asians were at the bottom of the "pecking order", given the most menial tasks and the worst cells, and were singled out for assault by prison officers. They received little help from their consulates, and often fell back on asking UK consular officials to assist.
  31. The statements of Mr Bamling and Ms Majakas were before the Divisional Court in July 2002, (Brooke LJ and Bell J) when the Lodhi case came back following a re-committal. They were deployed in the context of the argument under s 6 (1)(d) of the 1989 Act, prohibiting return where the trial or punishment of the extradited person would be prejudiced by his race or nationality. But it has some bearing on Article 3 here. The Divisional Court did not reject what they said but regarded it as of no great assistance because Mr Lodhi would be imprisoned in Dubai whereas their evidence was limited to conditions in Abu Dhabi. We note however that the order for removal is to the UAE; and the evidence of the next witness to whom we come, who was arrested in Dubai for an offence committed in Dubai and over which the courts in the Emirate of Ras Al Khaimah had no jurisdiction, was shuttled unaccountably between Dubai and Ras Al Khaimah and spent some time in the rather worse conditions there. Her second hand information from many people was also that prison conditions in Sharjah, with which Mr Lodhi has quite close connections, were as bad as in Ras Al Khaimah and notorious for sexual abuse of males by guards.
  32. Katherine Jenkins gave live evidence to the Divisional Court relating to the same s6 issue. She was working as an air stewardess for an Emirates airline when she was arrested in Dubai in 2000, when drugs were found in a flat which, she said, a friend of hers had left there. She was tried in Dubai and described a similar experience to others about how statements were taken and signed, but she resisted police intimidation to sign and was eventually acquitted; her co-defendants were convicted. She was in custody in Dubai for six months. She described conditions for women in prison and, as the Divisional Court pointed out, what she had to say about conditions in the men's prisons was inevitably second hand, except that during that period in custody spent in the police cells, she could hear three Asian prisoners being beaten by guards. Her description of conditions in Dubai prisons did not vary greatly from descriptions of Abu Dhabi prison conditions given by Mr Bamling and Ms Majakas. In particular, the UAE nationals received preferential treatment over other nationals and those from the Indian sub-continent were at the bottom of the pile. It is not clear from her statement nor from the summaries of it in the various representations and Skeleton Arguments which specific aspects of the brutality she witnessed had occurred in Dubai rather than in Ras Al Khaimah, save for the incident involving the pregnant Bengali which occurred in the latter. The Divisional Court in 2002 thought that the specific incidents of brutality largely related to Ras Al Khaimah. It would appear likely that the beatings of Asians with stick, cane or rubber tubing took place in Dubai. The location of the seemingly routine use of electric cattle prods on them for amusement is unclear. The Divisional Court, having heard her evidence, did not reject it as unreliable though pointing out that some was second hand and that some related to other Emirates in the same federated State.
  33. Next, we turn to the evidence of those who were involved in some way with Mr Lodhi's case. However, in order to understand the significance of some of this evidence, we have to recount a little of the background. We take this largely from the witness statement of Ms Fadhiel, an Iraqi, who was the Sales and Marketing Manager for Ideal General Trading Company at the time of Mr Lodhi's arrest. But although arrested and held in custody, she was released without charge, and now lives in the UK with Indefinite Leave to Remain. So there is no very obvious reason why what she says would be unreliable. She said that her two earlier statements made in connection with these proceedings in 2000 were more cautious in detailing the names of those who dealt with her, lest it be thought by the authorities, at a time when she was still living in Sharjah, that she merited punishment for helping Mr Lodhi and his wife. However, the statement which we take into account was not served on the UAE authorities and they may well have denied or refuted what she says adversely about their conduct.
  34. Mr Lodhi ran IGT from its base in Sharjah, where its warehouse was. By the mid 1990s, when Ms Fadhiel started to work for IGT, it was a well reputed company, buying, selling and leasing heavy construction equipment for use in projects in the UAE. In the UAE, a non-national can only run a business with a partner or sponsor who is a UAE national, who becomes a shareholder, takes a share of the profits and the right to control certain aspects of the operation, in return for the business licence. Mr Lodhi's sponsor in Sharjah was Sheikh Abdullah Al-Qasimi, head of the Sharjah municipality, and one of the influential family rulers.
  35. In 1997, IGT was involved in a major water theme park development, Dreamland, in one of the smaller Emirates, Umm al-Quwain. This proved very successful. IGT had a joint venture partner there: Sheikh Abdullah bin Rashid Al-Mu'alla, the ruler's fifth eldest son, third in the chain of ruling power from 2004, chief of the police in the Emirate and chief of general security, He was convicted in his absence of the same charges as Mr Lodhi and sentenced to imprisonment, but what appears to be his presence in Dubai from time to time since has not led to its enforcement. No reasons for this state of affairs have been given but no doubt his family and positions are more useful in such dire straits than being a Pakistani.
  36. As the business of IGT prospered and as it grew in repute, Ms Fadhiel, who clearly had a high opinion of Mr Lodhi as a businessman and employer, thought that he was and was certainly perceived as developing the ways of a sheikh, resolving personal disputes, bestowing patronage and favours, and gaining popularity and renown. His Sharjah sponsor thought this behaviour "unhelpful". There had always been regular three monthly police inspections of the books and premises, and a very long and thorough one lasting days in 1996 because of the allegation by a jealous rival that IGT had stolen one of his machines.
  37. Ms Fadhiel was present on 21 June 1997, when the business premises in Sharjah were searched, by one hundred armed officers. These are the premises at which the police allege that chemicals and equipment for making Mandrax was found; so there is a close connection with Sharjah, in the UAE. The police were asking her about the business, and after three hours she and other employees were driven to the police headquarters. No criminal charges had been mentioned. The further questioning there was all about the details of the operation of the business, but it appears to have taken place in the Drugs Department. No criminal charges were mentioned. She was then bailed in part because of the effect which her early pregnancy was having on her, and her husband was a UAE national.
  38. After three weeks house arrest, she was forced to return to the warehouse and to recall all the machinery out on hire on contracts all over the UAE. The police then collected all the machinery, including her personal car, and took them to headquarters, and the cheques from the hirers to pay for the hire. She was told by IGT workers that, within two weeks of this, they saw some of this machinery, identifiable by number plates, working on construction sites including one government contract. She believes that that is why they were taken.
  39. She was then interviewed in Dubai on five occasions by Mr Zarouni, who is responsible for giving some of the assurances in this case as to how Mr Lodhi would be treated. She spent a total of a further six months in prison in Dubai, where she also gave birth. His questions focused on the details of the business, but he did say that they were investigating drugs offences, and also on the whereabouts of Mr Lodhi. He offered her a substantial sum of money if she could bring him back to Dubai, and promising that she would then not be deported. This shocked her.
  40. During this period, when she was made to return to the IGT premises, she saw that nearly all of the important business documents had gone, and one man there told her that he had been appointed to take over the business by the prosecutor, to act as a receiver as English law would describe it. He said that half the evidence was with the Sharjah police and half with the Dubai police. The physical and financial assets of IGT had been seized equally by the prosecutors' offices in those two Emirates. IGT had been closed by a UAE Court order.
  41. Initially in Dubai she slept on the floor in a large room occupied by 150 prisoners, sleeping head to tail, but after a month she was moved to a cell, 3 metres by 3, containing 12 prisoners because she was pregnant, where she was provided with a mattress. There was very little natural light and no fresh air. She spoke of the violence which guards showed to prisoners: a UK national thought to be suffering stomach cancer was beaten and had her hair pulled; Iranian and Pakistani prisoners were verbally abused. Some prisoners were sexually abused in return for small favours. She thought the food disgusting, and received no medical attention for the heavy bleeding and unconsciousness she suffered because of her pregnancy. Her perinatal treatment was degrading. She attributed what she described as her awful treatment to being employed by Mr Lodhi.
  42. Mr Lodhi's expert described the involvement of Mr Lodhi with Sheikh Al-Mu'alla of Umm al-Qawain, whom he said he had been instructed was the sponsor of some of Mr Lodhi's businesses in the UAE, as the basis for his conclusion that Mr Lodhi has become involved in a "sheihkly dispute", although he also refers to Ms Fadhiel's statement. (His solicitor's representations refer to the Sharjah Sheikh as being the basis for the expert's conclusions which is perhaps what was expected but is not quite how the report reads. No doubt it all has something to do with the fact that they are both called Sheikh Abdullah.) One example of such a "sheikhly dispute" is where the jealousy of a Sheikh is aroused by a foreigner whose success involved drawing custom away from locally owned firms, which leads to criminal proceedings to destroy or transfer the foreign ownership of part of the business.
  43. The expert thought the involvement of Sheikh Mu'alla to be indicative of this form of dispute because he thought it highly likely that the Sheikh and his family took over what he, but not Ms Fadhiel, called Mr Lodhi's part of the joint venture at Dreamland which was proving so successful. The evidence of the offences includes evidence that the conspirators, including Mr Lodhi, met in Umm al-Quwain, that the manufacture started at Dreamland, and that Mr Lodhi rented a villa in Umm al-Quwain for part of the manufacturing process as well. Cartons of manufactured pills were stored in Umm al Quwain. Then a third manufactory was set up in Dubai, which was the first to be raided, and when the Umm al Quwain police raided the desert factory there, it is said that Mr Lodhi was seen driving towards it and then when he realised that the police were there, he drove away. So there was also evidence of a connection between the offences and Umm al-Quwain.
  44. Although the expert thought that this background was of particular importance for the Article 6 issues because of the way in which ruling families could interfere in the judicial process, he gave some weight to it in his conclusions on Article 3, but without giving any very clear reason why that should be so. To our minds, its significance for Article 3, is not that a real risk has been shown that the ruling family of Sharjah or Umm al-Quwain would encourage the torture or degrading treatment of Mr Lodhi, let alone do so successfully in Dubai; the evidence does not permit that conclusion to be drawn, although it does not refute it either. It is rather that Mr Lodhi would have no protectors among the ruling families who would try to ensure that he was not ill-treated and that the assurances given by Dubai, which we deal with later, were adhered to. And it is clear that he would have no such protectors, whatever view is taken of the background.
  45. Ms Fadhiel also gave evidence about what a convicted co-defendant, who had been released after serving his sentence, told her. We have ordered that his name be not released to protect him from the possibility of reprisals. The details provided of how the meeting was arranged and how what was said was recorded support the view that what was said may very well be true and has very probably been accurately recorded.
  46. The man had been threatened with further punishment or death, judicial or extra-judicial, on behalf of Sheikh Al-Mu'alla. In his first year in prison in Dubai, he was beaten, tortured in ways he does not specify, and was held in solitary confinement. He was frequently tortured, mentally and physically, including sexual assault and torture so that he would make statements, which the questioners then changed. The questioners included Mr Zarouni. The detail has also been omitted from this judgment to protect his identity.
  47. Girish Valanju, an Indian national who was arrested in connection with the same charges as Mr Lodhi but was acquitted and then left Dubai for India, provided a statement for the claimant in 2004. He did not know Mr Lodhi personally. Initially, while in the police cells, he slept on the floor in handcuffs and then in leg irons. He was kept in leg irons for 40 days and nights. For 30 of those days, he was moved to a room 12 feet by 8 where there were 5 or 6 prisoners, only 2 of whom could sleep at night lying down. Then they went to another slightly less over-crowded police cell for two months and the leg irons were removed. In effect he was held incommunicado, without access to a lawyer during questioning or to his family. He went on hunger strike for 26 days to obtain permission to contact his family and was told that he could only do so if he co-operated. He was then moved from the prosecutor's cells to the central prison after nearly a year in custody, where he was again interviewed by Mr Zarouni, without a lawyer but with an interpreter, who appeared to behave as part of the prosecution team. He signed some statements in Arabic which he did not understand, but he did not sign all those put in front of him. He went on hunger strike for a while at the start of his detention at this prison, and was held in solitary confinement for 6 months. He was then moved to a prison for more serious offenders where, for another 6 months, he remained in solitary confinement in silence in a small permanently lit cell, with inadequate sanitary and washing arrangements. During this time he was under constant pressure to make false statements to help the prosecutor. Eventually he was acquitted, and left Dubai for India.
  48. There was institutionalised discrimination against racial minorities, and he suffered as a non-Muslim. He also instanced another Indian and a Bangladeshi who told him that they had been tortured by beating, by being made to stand on burning hot tarmac and suffering other indignities. They showed him the effects.
  49. Mr Hamoon Lodhi, the claimant's younger brother, also gave evidence in a witness statement of 2006 about his arrest, detention and trial in connection with the same offences. He worked in the family business which included IGT. In 1999, he was convicted of drug trafficking in Dubai and sentenced to life imprisonment. He served nearly 7 years in prison there before he was released in 2004 and went back to Pakistan. He attributes his early release to learning to recite part of the Quran, which appears to be a fairly common way in which prisoners can achieve early release.
  50. He was arrested in Umm al-Quwain in June 1997, and was then driven to Dubai where he was initially kept for 60 days in the CID department. For the first 40 days, he was kept handcuffed and shackled in a room without a bed and with only a hard wooden chair. The police would slap him whenever they passed and would do so to keep him awake. The food and water was very limited and poor. They kept asking him where the claimant was and would hit him when he said that he did not know. All this left him bleeding and exhausted. He was then transferred to a cell, small and terribly overcrowded with only the floor to sleep on, dirty blankets, and very poor sanitary facilities. He remained handcuffed and shackled, unlike the others there. He saw Indians, Pakistanis, Bangladeshis and Sri Lankans being badly beaten by the police and dragged around by their hair.
  51. He was then moved to the Public Prosecutor's Detention Centre in Dubai where he was held in an underground and poorly ventilated cell with 11 others, but which had only 6 beds so some had to sleep on the floor. The facilities were dirty. He was questioned at random times of day or night and asked to sign statements. The Prosecutor threatened that he would never leave prison or would be killed and claimed to control the court. He had no outside contact and was beaten whenever he was seen talking to Mr Atkinson. Prisoners from India, Pakistan, Bangladesh and Sri Lanka were treated far worse than Arabs, and were hit and insulted for no reason and were generally treated inhumanely. It was common for a prisoner to be stretched between bars, or stripped and made to sit in a cell with the air conditioning turned up to make them very cold.
  52. After nearly a year in prison, the Prosecutor told him that he had to sign a confession or else be returned to solitary confinement. He refused and in solitary confinement was stripped and made to feel the freezing cold from the air conditioning. He rapidly became feverishly ill in consequence. After a week of this, and with a gun to his head, he was made to sign a statement in Arabic the contents of which he did not know. He was then returned to the Detention Centre.
  53. In January 1999, handcuffed and shackled, he was taken to the high security section of the Centre and put in a completely black, windowless cell with very poor ventilation. There was no bed or bedding apart from one dirty blanket. Food was thrown through a gap at the bottom of the door. He was taken to the lavatory once a day at a time of the guards' choosing, which meant that the cell became filthy. He was beaten when he asked if he could pray, as a Muslim. He remained there for 6 months, including the trial, which took over 20 months from his arrest to start.
  54. The trial lasted 3 months on and off. A day or so after he was convicted and sentenced to life imprisonment, he was put in the Jumeira prison, in solitary confinement, in a poor quality cell. Then he was moved to a cell in which there were 10 prisoners but beds for only 8. Washing and lavatory facilities were wholly inadequate for the number of prisoners. The prison was filthy. He was refused access for a long time to urgently needed dental treatment, and on release had to have 9 teeth removed, in addition to the 2 which had been eventually removed in prison. He observed there the same harshly discriminatory treatment against nationals of the 4 sub-continental nations, and in the provision of medical services. Those who complained at their treatment were subjected to stretching by being handcuffed separately to bars some distance apart, or to being handcuffed and shackled in solitary confinement. He observed all this and also experienced the stretching himself. His treatment in prison led to continuing physical and mental health problems on release.
  55. Finally, we deal with the evidence of Dr Tabassum Shaheen, Mr Lodhi's wife. She made statements in 2000 and in 2002, and also gave evidence before the Divisional Court in 2002, the second hearing. She was arrested in June 1997. Her statements describe growing resentment and hostility towards her husband from the ruling family of Sharjah, and police harassment, because of his success and wealth in the businesses in the UAE. She perceived the larger Emirates, including Dubai, as sufficiently hostile to the power and wealth which he was creating for the smaller Emirates, Umm al-Quwain in particular, to wish to have him killed. Comments were made to her in prison by guards which reinforced her views.
  56. She was interviewed by Mr Zarouni in July 1997, in the course of which he spoke to her husband on the telephone saying that were he to return to Dubai, Mr Zarouni could not predict what would happen. She then spoke to her husband and told him not to return, although he had said that she was being held only to make him return. This caused Mr Zarouni to end the call. He then told her that he would get her husband from wherever he was and that she should forget about him: Dubai was not going to let him help build up the power of a small Emirate. Mr Zarouni also told her on another occasion that she was being held to make her husband return.
  57. She was kept under close house arrest for 5 days, and her children were threatened with their pets being shot. Then she was imprisoned in Sharjah for 2 weeks or so. The cell was very overcrowded, and she was not permitted contact with her children. Non Arabs were treated far more harshly; proper medical treatment was denied; many were lashed and left without treatment for the cuts and pain.
  58. She then spent about 7 months in the Dubai Prosecutor's Jail, where the absence of sufficient beds meant that she had to sleep on the floor. Contact with her children was extremely restricted and, she thought, manipulated by Mr Zarouni. She had occasional visits from others if Mr Zarouni authorised them. She saw prisoners being punished by being beaten or tied in awkward positions for hours. She was told, in each prison, that she was being detained to put pressure on her husband to return to Dubai, and there were no charges against her. A Pakistan Consular official told her that all this was happening because her husband had crossed the line beyond which foreigners could not go in the UAE.
  59. She criticised the evidence against her husband. The confessions which incriminated her husband were all made after threats and over a year in solitary confinement. She gave evidence about seeing three others who had worked for IGT being held to make them incriminate her husband, two in conditions so bad that they lost a great deal of weight, as she also had done, with serious effects on their mental well-being; one was her brother, who would not give the statements which the police wanted, but was released in 1999. She appears to think that Mr Valanju was a guilty party, acquitted to remove an important witness.
  60. There is evidence from the United Nations Working Group on Arbitrary Detention in the case of Mr Atkinson, and others as well, that prisoners are not released at the expiry of their term or at the time when remission meant that they should have been released. There were disputes over fines, involvement in civil disputes and bureaucratic delays.
  61. The Secretary of State did not introduce new evidence to contradict what was said, although we are aware that Mr Zarouni had submitted a short statement to the Divisional Court in 2001 taking issue with some of the statements which it considered for the purpose of s6 of the Extradition Act. Mr Keith pointed out that much of what we have has already been considered by the Divisional Court, although we do not regard its conclusion as persuasive on this point given the limited purpose for which such evidence was being considered, the obligation on this Court to reach a conclusion for itself on the Article 3 issue, and the further evidence which we have. We also bear in mind that, although the UAE has not had any further opportunity for rebuttal evidence, it has been open of course to the SSHD to seek it.
  62. The SSHD's letter recognised that there were complaints about prison conditions but concluded that, though harsh and unhygienic, those in Dubai met international standards. There had been improvements in 2007 as well, and NGO access, with a Human Rights Department branch now operating in the Dubai Central Detention facility. The Secretary of State thought that evidence about conditions in other Emirates was of no real weight because the claimant would be returned to Dubai, and not to some other Emirate in the UAE. Although some evidence did relate to Dubai, the sort of complaints about overcrowding, bedding, medical and other routine matters, as she put them, were of the same nature as were made in respect of prisons in and outside the EU by UK nationals detained in them.
  63. The SSHD accepted that there had been allegations of serious abuse, and in her letter said that she was not in a position to resolve the truth about them as a matter of fact, but she was "prepared…to proceed on the basis that the witnesses have accurately recorded the ill-treatment that they witnessed and received, particularly in Jumeira Prison." [Dubai].
  64. However, she did not accept that Mr Lodhi would be at a real risk of violations of Article 3, and assurances had been given by Mr Zarouni about how Mr Lodhi would be treated. She did not think it likely that the UAE, with which bilateral extradition arrangements had been so recently completed, would sanction treatment violating them. The laws of the UAE forbad torture and degrading treatment.
  65. The written assurances from the Dubai Attorney General, Mr Melha, dated 7 May 2000, were that Mr Lodhi would receive all his human rights, including the right to apply for bail, to receive any visitor of his choice and to make and receive telephone calls whenever he wanted in custody. No death penalty could be imposed for the charges he faced. The relevant specialty assurances were given by the UAE Minster of Justice on 8 May 2000. On 10 January 2001, Mr Zarouni, as Dubai's Chief Public Prosecutor, repeated the assurance that the death penalty could not be imposed for the offences with which Mr Lodhi was charged, for which the maximum was life imprisonment, plus fines. On 8 November 2006, the Advocate General in the Dubai Attorney General's Office wrote to the "Judiciary Authorities" of the UK in response to the Ministry of Justice letter of 28 September 2006, which sought assurances that Mr Lodhi would not be tortured or subject to degrading or inhuman treatment or punished abusively. This reply stated that personal freedom was constitutionally guaranteed in the UAE, and the criminal law forbade torture, whether mental or physical, along with corporal punishment and degrading treatment. So the UAE Judiciary Authorities assured their UK counterparts that Mr Lodhi would not be tortured, nor subjected to inhuman or degrading treatment either as punishment for the offence charged or for breach of prison discipline.
  66. Mr Keith, drawing on Deya v Government of Kenya [2009] EWHC 2914 (Admin), submitted that there was a fundamental assumption that the state requesting extradition was acting in good faith, to displace which required evidence of especial force. There was an assumption that the requesting state would carry out its international obligations, reinforced by the assurances, regardless of its domestic deficiencies. Gomes v Government of the Republic of Trinidad and Tobago [2009] UKHL 21, [2009] 1WLR 1038 stresses that, even states with whom bilateral agreements have only recently been established or with whom ad hoc arrangements exist, are friendly states, arrangements with whom have been made on the basis of mutual trust and respect. This, submitted Mr Keith, gave weight to the probability that UAE, as a friendly state with whom bilateral extradition arrangements had now been concluded, would abide by its agreements and assurances and would not ill –treat Mr Lodhi.
  67. Mr Fitzgerald contended that, although the terms of the assurances were largely satisfactory if carried into effect, the assurances were not given in good faith, there was no sound objective basis for believing that they would in fact be fulfilled and compliance with them could not be verified. He relied on RB (Algeria) v Secretary of State for the Home Department [ 2009] UKHL 10, [2009] 2 WLR 512 for the proposition that those four requirements had to be satisfied before weight could be given to an assurance of the sort given here in relation to torture. That formulation, as drawn from para 23 of their Lordships' judgment, is reciting what Mitting J had said in RB, without in terms adopting it. There were differences in the monitoring procedures between Algeria, where there was no independent monitoring, and Jordan. Nonetheless their Lordships' speeches do not take issue with those points as important ingredients in deciding the key question, which is whether there is good reason to treat assurances as a reliable guarantee against a real risk that the rights at issue would be breached, when otherwise such a real risk would exist.
  68. It is agreed that no monitoring process is incorporated into the assurances. Without some special position being granted to it, the UK would not be the state primarily recognised as interested in looking after Mr Lodhi's welfare, because he is a Pakistani national. The evidence of inspections of prisons or places of detention shows a reluctance on the part of the UAE to allow in human rights observers as opposed to charities providing material support; see for example the claimant's expert and other NGO reports. The evidence rather is that those locally interested in human rights, however respectfully of government, are liable to be harassed.
  69. Mr Keith submitted that the claimant's evidence was either not related to Dubai, or was too general. It did not permit the Court to evaluate the degree of ill-treatment where only general allegations of torture were made, nor did it permit any assessment of the frequency of occurrence as required before the Court could hold that it had substantial grounds for believing that Mr Lodhi would face a real risk of forbidden treatment. To the extent that there was evidence of torture, the assurances were weighty, and given in good faith, backed up by the reality that the UAE would wish to maintain the bilateral extradition relationship so recently established. In any event, what happened to others in pre-trial detention while an investigation was going on, would not occur on Mr Lodhi's extradition because the investigation had concluded and he would go to re-trial quickly. The authorities in Dubai had gathered the evidence against him, which had satisfied the Court at the first trial; there had been a prima facie case against him under English law as the Divisional Court's second decision showed, and if they did want to question him, the assurances would apply.
  70. Mr Keith cited Miklis v Deputy Prosecutor General of Lithuania [2006] EWHC 1032 (Admin), [2006] 4 All ER 808 as authority for the proposition that the fact that human rights violations take place was not of itself evidence that a particular individual would be at risk of human rights violations. That would depend on the degree to which such violations were systemic, their frequency, and any vulnerabilities particular to the individual. This proposition has been applied in other cases.
  71. Mr Keith also emphasised that the ECtHR "real risk" test had been described in the Court of Appeal as a "stringent test which it is not easy to satisfy"; AS and DD (Libya) v SSHD [2008] EWCA Civ 289, paras 65-67. In Saadi v Italy, App No 3720/06, the ECtHR had said that the test required the application of rigorous criteria and close scrutiny, about which the court had been very cautious, reaching the conclusion that the risk had been shown to exist only rarely since the Chahal judgment. This was not the application of the "anxious scrutiny" test according to the Court of Appeal; rather it was highlighting the strength of the evidence necessary to prevent removal on the grounds of an apprehended breach of Article 3. Taken as a whole, the evidence here did not warrant the conclusion that a real risk of a breach of Article 3 existed; i.e. the substantial grounds for believing that a real risk existed were not proved.
  72. We are unable to accept the factual submissions on behalf of the Secretary of State. We recognise that the UAE has not had the opportunity to respond to all of the evidence, and, at the more general background level, it might well not suffice on its own to show that a real risk existed. But it has to be assessed in the light of other evidence that what happens in Dubai detention is very little observed and reported, and that a clearly independent judiciary, other democratic institutions, NGOs, a moderately free press, and academics, do not exist in the UAE or in Dubai, in a way which would normally bring abuses to attention and sanction. The general values which underlie Article 3 of the ECHR, while reflected in the Constitution and some other legislation, are not reinforced in practice by the type of check and balance which is commonly of value. The darker picture in the latest State Department Report is not the expression of a worsening situation but rather of greater knowledge of what may happen.
  73. The general picture is however supplemented by first and second hand evidence of the personal experiences of those who were not UAE nationals but were in detention before and after trial. This includes evidence about how Pakistanis and other sub-continental nationals were treated because of their nationality and race. There is no reason not to accept what is said at face value. Some relates to parts of the UAE other than Dubai; but specific evidence contrasting Dubai favourably with the smaller Emirates or indeed with Abu Dhabi has not been provided. (We have assumed that Mr Lodhi would not be moved from Dubai at any stage, although there is no assurance to that effect, his alleged offences are connected principally to two other Emirates, and there is evidence that persons are transferred from Emirate to Emirate in what is one Federal State, to which he is being returned. No argument however was raised or addressed to this point).
  74. Some of the individuals' evidence relates to treatment and prison conditions which would not cross the Article 3 threshold but some clearly does. It is very troubling evidence when taken with the general evidence because of the inference which is readily drawn that these occurrences were quite common at least for a Pakistani national.
  75. The evidence which ultimately persuades us that there is a real risk that Mr Lodhi's return would breach Article 3, and which, with the other evidence, provides substantial grounds for that view, is the evidence about what happened to his colleagues and to other defendants. And this is to be seen in the light of the general evidence and evidence about what happened to others, in Dubai and in other Emirates. As Mr Fitzgerald pointed out, there is a range of evidence , covering different prisons, times, and Emirates, showing different groups of people, in groups which are independent of each other, describing the same experiences of treatment which breaches Article 3, for at least part if not the whole of the time in detention.
  76. Those involved in the trial or investigation faced or were being investigated in relation to the same charges and case as Mr Lodhi; they were not UAE nationals for the most part. There is no reason not to accept what most of them say, at least as affording substantial grounds for our belief, even allowing for the evidence of his wife, perhaps, to be in part more coloured by his interests. It is specific to Dubai for the most part, to the Jumeira prison, and to this case. It is sufficiently detailed to show that colleagues, relatives and co-defendants have or may very well have been subjected to treatment which breached Article 3, before and after trial.
  77. A new prison with a capacity for 6000 prisoners opened in Dubai in 2006, which must have reduced the effects of the overcrowding described in the evidence. The Foreign Affairs Committee concluded that Dubai's prisons met international standards, and the Dubai police in 2007 opened in 2007 a new Human Rights Department. There is some evidence of access by NGOs. It may be that a real risk of treatment in breach of Article 3 by reference to the standards of overcrowding, bedding, sanitation, and food no longer exists, but the evidence is quite strong that it was extremely poor, and the evidence that it has changed is scanty. We are however not concerned solely with the generalities of conditions but with the reality of the risk to a Pakistani, perhaps facing interrogation and torture or serious ill-treatment during it, and then quite probably a long term in prison, without local support, with brutal treatment or torture by guards a relative commonplace, all in what may be still very poor conditions.
  78. We do not accept that in this case the assurances are adequate to prevent this real risk arising. We accept that they are not given in bad faith. There is not the strong and cogent evidence required for such a conclusion. There is a possibility at least that the trial may be the trumped up outcome of a "sheikhly dispute" involving the ruling families of two smaller Emirates; but there is also cogent evidence admissible under UAE law of involvement by Mr Lodhi in a major drugs conspiracy, and the Divisional Court found in 2002 that a prima facie case existed under English law. There is evidence that Dubai has made no serious efforts to enforce the sentence of its court on Sheikh Al-Mu'alla of Umm al-Quwain. But caution is required as to the inferences which can be drawn from that: ruling family members may receive privileges on account of their status, but that does not of itself begin to show that Mr Lodhi's extradition is sought in bad faith after all these years. After all, the Sheikh was put on trial and found guilty; and the seizure of Mr Lodhi's assets appears already to have occurred rather than to require a trial for its legitimisation. The UAE in June 2009, in correspondence principally related to other issues, has ignored however the request for information as to whether Sheikh Al- Mu'alla had visited Dubai in 2008, referring only to the case against him in Abu Dhabi's Higher Court. But all that is far from sufficient to show that Mr Lodhi's extradition is sought in bad faith.
  79. The general language of the assurances is satisfactory but they do not deal with the location and duration of pre-trial detention, who would be in charge of it, and whether or not Mr Lodhi would be interrogated during that period. This is quite important in view of the evidence about what has often happened during what can be prolonged detention pre-trial and which has breached Article 3.
  80. More importantly, there is no obvious way in which the assurances against torture and ill-treatment could be verified. Although the assurances say that Mr Lodhi would be able to receive the visitors of his choice and to make telephone calls, that assurance is not intended, we think, to convey any special privilege, rather than to state the way in which the prison system is said to operate. There is no NGO monitoring generally or specifically: although the US State Department Report for 2009 says that NGOs are allowed to inspect the prisons if they request, the one request made appears to have been refused. Neither UK nor Pakistan consular officials have been given any particular role in checking on the observance of the assurances. The lack of the promised investigation, even now, into what happened to Mr Usmani illustrates how difficult it may be to obtain information about what happens in the UAE.
  81. Mr Keith rightly points to the fact that the UAE have a diplomatic and no doubt wider interest in adhering to the bilateral extradition so recently concluded, and that breaches of the assurances given here would harm that beneficial relationship. That is undoubtedly a factor in favour of giving weight to the assurances.
  82. However, the frequency and extent of the breaches of Article 3, the specific problems which have arisen for others involved in this case and the unverifiable nature of the quite general assurances, have led us to the conclusion that they cannot sufficiently diminish the real risk, which we are satisfied would otherwise exist, that, were Mr Lodhi to be extradited to the UAE, his Article 3 rights would be breached, before trial, or during imprisonment after conviction. The specific treatment he would risk would amount to a breach of Article 3. The general conditions of custody heighten the degree of risk that his Article 3 rights would be breached; they encourage harsh treatment especially of foreigners, brutality in punishments, and risk being degrading in themselves. The decision that he should be extradited is therefore quashed.
  83. Article 6

  84. We shall deal with this more briefly in the light of our conclusion on Article 3. The precise state of ECtHR jurisprudence on the role of this Article in relation to trials which are to take place in a state which is not party to the ECHR is debateable; see paragraphs 7 and 140 of RB (Algeria) and others v SSHD [2009] UKHL 10; [2009]2 WLR 512. However, we apply what Lord Phillips of Worth Matravers said in that latter paragraph and in paragraph 141:
  85. "Although there is no authority that establishes this, I think that it is likely that the Strasbourg court would hold article 6 and article 5 to be violated if an applicant were to be deported in circumstances where there were substantial grounds for believing that he would face a real risk of a flagrantly unfair trial and that the defects in the trial would lead to conviction and a sentence of many years' imprisonment.
    "141 In summary, the Strasbourg jurisprudence, tentative though it is, has led me to these conclusions. Before the deportation of an alien will be capable of violating article 6 there must be substantial grounds for believing that there is a real risk (i) that there will be a fundamental breach of the principles of a fair trial guaranteed by article 6 and (ii) that this failure will lead to a miscarriage of justice that itself constitutes a flagrant violation of the victim's fundamental rights."
  86. The second part of the test is likely to be satisfied in this case if the first part is satisfied. If Mr Lodhi faced a fundamentally unfair trial, he would probably be convicted again, and would face a life or other very long sentence of imprisonment. The trial would breach Article 6 to the necessary degree if it was flagrantly unfair, so fundamental as to amount to a nullification or destruction of the very essence of the rights in Article 6; a serious or discriminatory interference would not be enough; EM (Lebanon) v SSHD [2008] UKHL 64 [2008] 3 WLR 931. The claimant must show, on the same basis as for Article 3, that there was a real risk that Article 6 would be violated to that degree.
  87. There is no one factor which is so important that the mere fact of a breach of Article 6 in respect of it inevitably equates to a nullification of the rights granted by Article 6. The need for an independent judiciary, important though it is, is not necessarily such a factor: there may be a want of structural independence in the nature of those appointed and in the duration or security of the terms of their appointment without those Article 6 deficiencies automatically giving rise to a flagrant denial of justice. The special military court which would try Mr Othman lacked the independence required by Article 6 because of the nature of the judges and the basis of their appointment and tenure. Yet the Court of Appeal and House of Lords held that that did not of itself give rise to a fundamental breach of Article 6; RB (Algeria) and others, above, at paragraph 146.
  88. Mr Fitzgerald relied on a number of factors here as showing, separately or in combination, that there was a real risk of a trial which would be a complete nullification or denial of the Article 6 rights. First, the claimant's expert himself said that the UAE's judicial institutions were now generally independent, although there was still considerable room for improvement and development. There were more better qualified and carefully monitored judicial staff, capable of ensuring independence. However, the judiciary were not fully independent because they were non-UAE nationals seconded from an Arab Nations Country on short term renewable contracts, and were liable to removal from the country at the end of their term. Mr Zarouni, in a letter dated 10 January 2001 to the Home Office, said that no one who wanted a renewal of his contract had been refused one, although the country from which he had been seconded could refuse an extension, and this had happened sometimes. The factual position was not at issue, although its significance was; it was not disputed however that a court so appointed and so removable would not comply with Article 6 for a state party to the Convention. There was an appellate system. There is real force in Mr Keith's point that the trial court acquitted some defendants, and that one of those convicted was Sheikh Al-Mu'alla.
  89. We were not persuaded by the rather contradictory evidence about Shari'a courts that the retrial might be before a Shari'a court, any more than the original trial was.
  90. Second, there is evidence that the courts' decisions are subject to interference or to countermand by the "diwan", the ruling family's office to be found in all the Emirates. The State Department Report for 2009 says:
  91. "The constitution provides for an independent judiciary. In practice, however, its decisions remained subject to review by the political leadership. The judiciary was composed largely of contracted foreign nationals potentially subject to deportation.
    By tradition, the local rulers' offices, or "diwans," maintained the practice of reviewing many types of criminal and civil offenses before cases were referred to prosecutors, reviewing sentences passed by judges returning cases to the court on appeal, and approving the release of every prisoner whose sentence was completed. The diwans' involvement—usually in cases between two emirates or between a citizen and noncitizen—led to lengthy delays prior to and following the judicial process and lengthened the time defendants served in prison. The diwan's decision in any court cases is considered final, and in the case of disagreement between a judge and diwan, the diwan's decision prevails. Because diwans report to the minister of the interior, there was often no functional separation between the executive and judicial branches."
  92. The claimant's expert quoted the 2007 US Report version of that evidence, covering 2006. Curiously, and in contrast to his view, this same 2007 US Report stated that the judiciary "was not generally considered independent", because most of the judges were removable foreign nationals, whose decisions were subject to political review. The later Report for 2008 is worded differently. The 2007 Report also said that in drug offences, the authorities are obliged to inform the office of the ruler of the emirate where the offence was committed. This Report also said, but dealing only with Abu Dhabi, that the effect of the review of criminal cases by the diwan and the extra-legal requirement that it approve the release of prisoners, delayed the processing and release of prisoners sometimes beyond the limit of their sentence. But this does not deal with interference in trial outcome, or increasing sentences save as a consequence of bureaucratic delays. The Freedom House Report of 2009 said that the judiciary was not independent, with court rulings subject to review by the political leadership.
  93. Although the expert gave examples where the diwan or rulers had interfered with sentence in the sense that they had exercised the ruler's powers to pardon or release early, that was no more than exemplifying a power which government often exercises. He also gave examples which he said showed that royal families were often immune from criminal action. None of those examples illustrate the point which is of concern to us: does the diwan interfere with the result of a criminal case before or after verdict, and in particular to prevent an acquittal? Is its power after trial confined to sending a case for appeal on the verdict? Can it increase or initiate an appeal to increase sentence? What is said in the US State Department Report suggests that in criminal cases the role relates either to the initiation or stopping of a prosecution, which is not at issue here, or to sentence, and may only be to achieve reductions or release after expiry of sentence. It draws no clear distinction between civil and criminal cases but the comment that the diwan's decision is final may only relate to the immediately preceding sentence which is on its face concerned with civil trials. This extradition is not a case between two Emirates nor litigation between a UAE citizen and a non-citizen.
  94. There was no evidence of the operation of the power of the diwan in the trial at which Mr Lodhi and others, including Sheikh Al-Mu'alla, were convicted. Dubai's rulers were after all not said by anyone to be involved in the "sheikhly dispute", save for Mrs Shaheen's view that Dubai was jealous at the rise of Umm al-Quwain, (which was not the claimant's expert's view). And if the rulers of Dubai might be reluctant to see a neighbouring Sheikh actually serve his sentence in Dubai, it is difficult to see that that would cause it to put pressure on its courts via the diwan to procure a conviction for him or someone else. The charge was for a conventional criminal offence albeit on a large scale, and if merely trumped up or requiring political intervention to procure a conviction, it was an elaborate framing of a major drug operation actually underway with 24 Defendants, significant physical evidence, and evidence against Mr Lodhi sufficient for a prima facie case in English law, and more in Dubai law. The Divisional Court saw no grounds in the reasoned judgment of the Dubai Court for holding that it was biased or lacking in independence; and though not of itself conclusive evidence, that is a factor. We were not taken to that judgment ourselves but the assessment of it by the Divisional Court is entitled to real weight. We do not see in this material substantial enough grounds for saying that there is a real risk that the defects in judicial independence are so great that of themselves they show that the trial would be no trial at all but rather a nullification of the Article 6 rights.
  95. There was some last minute further evidence that the actual court decision itself is interfered with directly in a political case or in one in which the interests of the ruling families are engaged. This evidence was the consequence of our questions as to what the US State Department Report, the earlier version quoted by the expert and his examples actually signified of relevance to Article 6 in this case. The claimant's expert said:
  96. "Based on my experience, my opinion is that the diwans can influence the judicial process by making their views clear to a court at any stage of the proceedings. They can review the decision to commence proceedings, review the decision reached in the proceedings, or review the sentence imposed. The decisions of the diwans are final.
    This interference is typically exercised by a telephone call from the court of the diwan to the judicial court. This interference is widespread across the UAE, but is more likely to occur where a case has a political dimension and/or where the interests of the sheikhs are engaged."
  97. We do not regard this as evidence we can put any weight on. It came far too late for any response by the SSHD. Had it been available earlier, it might have persuaded us that the UAE had to be served so that it could respond to this evidence. The evidence itself is very general; and it is quite impossible to see from it how the witness could know what he describes to be true, especially as what he is describing is intended, if true, to take place behind closed doors, and in circumstances to which he would not be a normal privy. Furthermore, as this was the sort of evidence which, if correct, was obviously important to the case as opposed to the essentially irrelevant examples of interference or immunity which he did give, we are surprised that it was not the centrepiece of the claim that the judiciary were not in fact independent at all but did what they were bidden to do. The obscurity of the US State Department Report on this point should have been obvious.
  98. Accordingly, we take the view that such deficiencies in independence as have been properly placed in evidence do not come close by themselves to showing that the retrial would be a nullification of Article 6. Had the evidence of the expert been more detailed and specific, with its basis more fully revealed, and had the UAE had an opportunity of dealing with it, our views on this aspect of Article 6 might very well have been different.
  99. Third, there is evidence which we have already adumbrated, which shows a real risk that questioning during pre-trial detention, which may include incommunicado detention, can breach Article 3, and that such questioning can lead to statements being signed, which may be adduced in evidence. These may incriminate the person being questioned or someone else. There is also a real risk that statements can be signed, after improper pressure, or which have not been understood by the witness but which may be introduced at trial.
  100. We do not have any real picture of how the Dubai Courts approach allegations that evidence has been obtained in this way: whether they are ignored, routinely and unconscientiously dismissed, or what standard or burden of proof is required for its admissibility or exclusion. The earlier expert evidence of Mr Edge, prepared for another person but relevant to the general criminal procedures and which was considered at the earlier Divisional Court hearings, adds nothing to this issue.
  101. No such picture is available generally or from what happened at the trial in this case. The Divisional Court in 2001, at paragraph 43, referred to the judgment of the Dubai Court which contained a summary of the admissions made by seven witnesses including Mr Al Shaar and Mr Hamoud Lodhi. Much of the prosecution's case was built on these admissions. The Divisional Court noted that a number of defendants, including Mr Hamoud Lodhi, claimed at the trial that their admissions had been obtained by duress, but the Dubai Court had rejected those pleas and considered that it was safe to rely on their admissions. This advances matters only to the extent that the trial court did have some legal basis upon which it had to consider whether admissions should be excluded, relating to the manner in which they had been obtained.
  102. We are satisfied that Mr Lodhi would face a real risk of a breach of his Article 3 rights on the basis of all the circumstances he would face. If there were any questioning of Mr Lodhi before trial, and we see no reason to suppose that that would not happen, there is at least a sufficiently clear pattern to show a real risk that he would be subject to improper pressure, and that the presence of an interpreter would not prevent that. There is no assurance that he would have a lawyer present during such questioning.
  103. On the state of the evidence, however, we cannot hold that there are substantial grounds for believing that the Dubai courts do not have a legal framework for the exclusion of evidence which has been obtained by torture or ill-treatment. It is for the claimant to show that such procedures do not exist. It follows that the admission of evidence which is alleged to have been obtained by torture or ill-treatment would be the consequence of a judicial decision that the evidence had not been so obtained. Although the evidence we have set out about how defendants are treated and interrogated provides substantial grounds for us to believe that there is a real risk that their statements were obtained by ill-treatment forbidden by Article 3 or even by acts which amounted to torture, that is not the crucial question here. The crucial question is whether the judicial decision would be manifestly arbitrary, unreasonable or probably wrong. It is not whether there is a real risk that it would be wrong, a test which many a judicial decision about past facts would fail; see RB (Algeria) above at, for example paragraphs 153, and 201.
  104. Fourth, evidence was given by Mr Al-Shaar at the first trial which was of importance in incriminating Mr Lodhi, giving general evidence of his involvement in importing ingredients for the drug, in buying equipment for making the drugs, in storing the drugs at IGT premises, and in using premises in Umm al-Quwain to mix the ingredients. Mr Al-Shaar says that he saw Mr Lodhi driving in his car towards the desert drug factory in Umm al-Quwain and departing quickly in it when he saw that the police were there, raiding it. This evidence was crucial to the Divisional Court deciding in 2001, that, in the absence of compliance with the correct procedures for making that statement admissible in English law, there was no prima facie case in English law, but otherwise there would have been one.
  105. Mr Lodhi contests that evidence and would wish to contend at his trial that that evidence had been obtained by torture. The procedure in Dubai for a re-trial is that Mr Lodhi should be able to call or have called the witnesses against him as at the first trial, according to the explanation given by Mr Zarouni in a letter to the Home Office dated 2 January2001. Otherwise, the prosecutor can rely on the record of the evidence given at the first trial. Mr Lodhi has been concerned whether Mr Al-Shaar would be available at his retrial, whether over a video link or otherwise, or whether he would be absent and his evidence therefore read from the record of the first trial.
  106. Correspondence between the Home Office and the Dubai Attorney General's Office in June and October 2009 has shown the position to be this. Mr Al-Shaar was pardoned part of the way through his sentence following conviction, and has been deported from Dubai. The authorities in Dubai do not know where he is, and in particular whether or not he is in Syria, which is his country of nationality. Nor do they know of any travel ban on him leaving Syria. Whether evidence could be given from where he is residing, if technically possible, would be a matter for the court of trial. However, the October 2009 letter from Dubai makes it clear that if the witness is unable to attend at all, it will be open to the court to decide that the record of his evidence from the first trial should be read as part of the retrial. Were he to attend, he would enjoy judicial immunity while in Dubai for the purposes of giving his evidence. There is some evidence that that would not preclude a prosecution in Syria for giving perjured evidence if he changed his evidence between the two trials.
  107. For our part, the fact that Mr Al-Shaar may not be available for the retrial and so the assertion that his evidence was obtained by torture or ill-treatment could not be put to him in cross-examination to rebut the reading of his evidence from the previous trial, cannot show that the trial would be unfair. This is the sort of problem with which trial systems have to grapple, reaching a variety of solutions, including the reading of evidence. There is no reason to suppose that Mr Lodhi could not require the attendance for cross-examination of those who took the statement or who are alleged to have procured it by forbidden means. It must be to some extent doubtful that Mr Al-Shaar, if found and persuaded to attend, would risk a perjury allegation by recanting his previous evidence anyway, notwithstanding what the Dubai authorities say to the UK about judicial immunity in Dubai. The real role which the point about Mr Al-Shaar's current whereabouts has to play would be in the assessment of whether a prima facie case existed, which as we understand matters is an issue which would have remained to be considered if we had reached a different view on Article 3.
  108. Fifth, there is evidence, expert and from personal experience, that the trial procedures, which are in Arabic, can be undertaken without any interpreter for many relevant parts. However, Mr Zarouni, in his letter to the Home Office of 10 January 2001, states that Mr Lodhi will be entitled to an interpreter when questioned, (which suggests that he will indeed be questioned), and at his trial, and that he cannot be questioned or tried without an interpreter. He would also have defence lawyers of his choosing. The US State Department Report for 2008, published in 2009, says that interpreters are not always used where an illegal immigrant is being tried but that would not be the case here. The descriptions of the trial from which Mr Lodhi was absent leave some doubt over how far the rights to be present, or represented or to have an interpreter were actually given effect. Although there have been restrictions on observers at trials, implementation of those two assurances ought fairly readily to be verifiable. We see no reason not to accept those assurances at face value as covering the whole of the trial process, as did the Divisional Court in 2001. The experience of Mr Hamden in Abu Dhabi is not sound evidence that the specific assurance given in this case should be interpreted restrictively or regarded as fragile.
  109. Taking all those points in the round so far as we accept them, we do not consider that they reach the high level required for the trial to be a complete nullification of the concept of a fair trial within Article 6. Our view might well have been different had there been better evidence to support the claimant's latest statement of how the diwan operated, or evidence that the judicial consideration of allegations that admissions had been obtained by torture or ill treatment was non-existent, negligible, or arbitrary and unreasonable, or even probably wrong.
  110. Section 6 of the Extradition Act 1989

  111. Mr Fitzgerald submits that the SSHD's decision, that Mr Lodhi would not be prejudiced at his trial or punished or detained by reason of his race or nationality, was unlawful. This decision is subject to normal judicial review, and is not one for the Court's own evaluation. We approach it, as agreed by all parties, on the basis that the SSHD has taken into account all the material before the Court and has decided to maintain the June 2008 decision. We deal with it briefly in the light of our conclusion on Article 3.
  112. The statutory language, which only requires that it be shown that the claimant "might be" prejudiced in that way, means nonetheless that there have to be substantial grounds for believing that such prejudice would occur.
  113. In our judgment, the SSHD's view that the assurances as to representation and interpreter, in the light of the history of convictions and acquittal, mean that Mr Lodhi would not be prejudiced at the trial on account of his race or nationality, is reasonable rather than unlawful.
  114. We do not accept however that the reasoning and conclusion in relation to punishment is justified on the evidence. In paragraphs 74-75:
  115. "She agrees nevertheless that the evidence demonstrates a general societal and cultural discrimination in UAE based on gender and nationality. There does not, however, appear to the Secretary of State to be any evidence of an official policy of treating non-UAE nationals less favourably in prison and, indeed, the published objectives of those responsible for the prison service included a determination to treat all people equally.
    This is consistent with the view of the High Court on 9th October 2002 to the effect that was that there was no evidence that officials in Dubai either approved or encouraged discriminatory treatment, or turned a blind eye to it"
  116. It is essential to her reasoning that Mr Lodhi would receive the same punishment as a UAE national, would be treated in the same way in prison, and would not be subject to arbitrary imprisonment. She did not consider, nor was the contrary argued, that the manner in which someone might be treated in prison on the grounds of race or nationality, while serving a sentence imposed regardless of race or nationality, was irrelevant to section 6.
  117. We can accept the view that the term of imprisonment would be the same as for a UAE national, and would be prepared to regard the apparent immunity which Sheikh Al-Mu'alla enjoys as more favourable treatment on the grounds of personal status rather than because of his nationality or race. Although it does appear that a non-national is at greater risk of arbitrary detention at the end of his sentence because he might wish to leave Dubai and be without the means to pay a fine or resolve a civil dispute, the view could be taken that the chance of such arbitrary imprisonment was not nationality or race based.
  118. However, the evidence that the accepted general and quite serious societal discrimination finds expression regularly in a harsh form in prison is clear and not really grappled with in the SSHD letter. It is not sufficient to point to published objectives for the Dubai prison service in the light of the evidence of what actually happens, some of which was before the SSHD herself in June 2008. The decision of the Divisional Court in 2002 does not persuade us that on the evidence which the SSHD is taken to have considered, any conclusion was permissible other than that there was prejudice on the grounds of race or nationality in the way in which non UAE nationals were treated and punished when in detention, before and after trial. The discrimination applied to UK nationals but it was at its worse for those from subcontinental countries such as Mr Lodhi. For a Pakistani like Mr Lodhi, facing a lengthy term on serious offences, with perhaps ineffective consular protection, and quite probably facing hostility as a once successful foreign businessman with local enemies, far clearer contrary evidence and assurances as to treatment would be required to overcome the impact of the evidence before us. We regard it as inevitable that he would face discrimination and prejudice from prison guards on the grounds of his race and nationality, which would be a matter of indifference to higher officials, who would visit no sanction on the offending guards. Such discrimination is part of the routine way of life in the UAE, and it is not realistic to suppose that its prison system, deficient as it is, would in this respect be its sole beacon of light. Such societal discrimination illustrates the limits of constitutional guarantees of equal treatment for all races and nationalities. This decision follows from our view of the evidence in relation to Article 3. Had we taken a different view on that, a different view on this issue might well have followed.
  119. So we quash the decision on that ground as well.
  120. Bad faith under section 12 of the Extradition Act

  121. This is a very difficult ground for a claimant to make out. There was a prima facie case against Mr Lodhi in English law, and he was convicted after a reasoned judgment explained why, based on evidence admissible under UAE law. This is summarised in the Divisional Court decision in 2001. The correspondence concerning Mr Al-Shaar does not show any want of good faith, nor do the inconsistencies said to exist between his statements. That is not unusual among the statements of a prosecution witness. The apparent immunity from imprisonment of Sheikh Al-Mu'alla is explicable by his personal status, however undesirable. It does not show bad faith. The evidence of how admissions and statements are or were obtained goes to the fairness of the trial rather than to bad faith. The inhibitions on Mr Lodhi's solicitor questioning prosecution witnesses in 2001 in Dubai does not begin to show bad faith. There is a possibility that the case is trumped up for the reasons given by the Lodhi family and employees, but the fact is that there was a prima facie case and a reasoned judgment explaining the case against Mr Lodhi. We do not accept that the decision of the SSHD on this ground is impugnable.
  122. Delay under section 12 of the Extradition Act

  123. S12(2)(a) prohibits extradition where in all the circumstances, it would be unjust or oppressive to return him, by reason of the passage of time since 1997 when Mr Lodhi allegedly committed the offences. Mr Fitzgerald submits that the decision of the SSHD that extradition on those grounds was not prohibited is unlawful. There is nothing in this. Although there was a period of 2 years delay in the mid 90s which was largely attributable to delays on the part of the Home Office, the effect of the decision of the House of Lords in Gomes, above, especially at paragraph 26, is quite clear. Mr Lodhi left the UAE knowing that he was wanted at least for enquiries and probably more, and has been contesting extradition ever since his whereabouts in the UK became known to the UAE. It is not unjust or oppressive to return him and the relatively short periods of delay by the Home Office does not break the causal link between his departure, his contesting of the extradition and the prejudicial effect of any delay on his trial. Mr Fitzgerald submitted that Gomes did not deal with the problem posed by someone who absconded through justified fear of oppression. That is an issue we leave for another day, as it is adequately reflected in our conclusions on Article 3 and section 6. Were it not for those conclusions, Section 12 would not be a bar in this case.
  124. His Article 8 claim could not succeed were extradition otherwise warranted.
  125. However it is not, and the decision of the Secretary of State is quashed for the reasons which we have given.
  126. For the reasons given in Court on 11 March 2010, principally pragmatic reasons related to costs and the virtually completed state of this judgment, it has been delivered notwithstanding the intervening death of Mr Lodhi.


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