MOHAMMAD FAKHAR AL ZAMAN LODHI v (1) THE GOVERNOR OF BRIXTON PRISON (2) THE GOVERNMENT OF THE UNITED ARAB EMIRATES [2002] EWHC 2029 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
[2002] EWHC 2029 (Admin)Case No Case No: CO/4996/2001Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
MOHAMMAD FAKHAR AL ZAMAN LODHIApplicant(1) THE GOVERNOR OF BRIXTON PRISON (2) THE GOVERNMENT OF THE UNITED ARAB EMIRATESRespondents
Before
Lord Justice BrookeMr Justice BellEdward Fitzgerald QC & Julian Knowles (instructed by Corker Binning) for the ApplicantChristopher Greenwood QC & Andrew Colman (instructed by the Crown Prosecution Service) for the RespondentsHearing dates : 22nd & 23rd July 2002Date 9 October 2002

Lord Justice Brooke :

This

[1]is the judgment of the court. The background history of this matter is fully set out in the earlier judgment of this court on 13th March 2001 (“the first judgment ” : Lodhi v Governor of HMP Brixton and Another [2001] EWHC Admin 178 ). On that occasion the court ordered Mr Lodhi’s discharge following his committal by a district judge on 21st September 2000 on six charges relating to drug offences for which his extradition had been sought by the Government of the United Arab Emirates (“UAE”). The grounds on which that application succeeded related to the insufficiency of such evidence as had remained after the district judge had ruled certain evidence inadmissible and this court had held that certain other evidence should not be admitted on the grounds that it was not clear whether two non-English speaking witnesses had indeed understood the witness statements which they had signed. The court rejected all the other arguments adduced by Mr Lodhi and his advisers, and said (at para 152) that if there had been any procedure by which the defects in the evidence of one of those witnesses could have been remedied short of a new extradition request being made, it would have been difficult to persuade it not to remit the case to the district judge for reconsideration.[2]Following that judgment a second extradition request was made. On 24th April 2001 the Secretary of State issued an authority to proceed with that request. On 20th July 2001 District Judge Evans ruled that he had no jurisdiction to entertain an application to dismiss this second extradition application on the grounds of abuse of process. He added that even if he had such jurisdiction, there was no proper basis on which he could, let alone should, stay the proceedings. At a further hearing on 23rd November 2001 he held that there was a case to answer on the evidence submitted in respect of the second extradition request, and that ruling is not challenged in these proceedings.[3]Instead, Mr Fitzgerald QC, who appears again for Mr Lodhi, rests his present habeas corpus application on three grounds:(1) That this second extradition request did indeed represent an abuse of process and that Mr Lodhi’s discharge ought to be ordered on those grounds;(2) That Mr Lodhi’s return would be unjust and oppressive by reason of the passage of time, and that he was therefore entitled to be discharged under section 11(3)(b) of the Extradition Act 1989 (“the 1989 Act”);(3) That there were substantial grounds for thinking that he would be prejudiced at his trial, or punished, detained or restricted in his personal liberty by reason of his race, religion or nationality, and that he was therefore entitled to be discharged under section 6(1)(d) of the 1989 Act.[4]We can deal with the first two of these submissions quite briefly. As to the first, following the judgment of this court in R (Kashamu) v Bow Street Magistrates’ Court [2001] EWHC Admin 980 , [2002] 2 WLR 907 , Mr Greenwood QC, who again appeared for the UAE, did not argue that there was no jurisdiction to entertain an application on abuse of process grounds. He relied heavily, however, on what Rose LJ said at para 34 of his judgment in Kashamu , to the effect that it would only be in a very rare case, provided that the statutory procedures had been followed, that it would be possible to argue that abuse of process had rendered the detention unlawful under Article 5(4) of the European Convention on Human Rights. We accept his submission that the district judge was correct to find that the case was not remotely comparable to R v Horsham Justices ex p Reeves (1982) 75 Cr App Rep 236, on which Mr Fitzgerald relied. Like the district judge we can see no merit at all in the submission that this second extradition request, made in the circumstances we have described, triggered off proceedings which constituted an abuse of the process of the English courts.[5]We can see equally little merit in Mr Fitzgerald’s second submission. He showed us decided cases in which this court has taken into account the hardship which would be caused to the dependent children of a person whose extradition was being sought, and he relied in this context on a number of reports prepared by consultant psychiatrists on the condition of Mr Lodhi and his wife and their four children who are now living with their parents in London, as well as on evidence given directly by his wife. Mr Fitzgerald has summarised the effect of this evidence as follows: i) Mr Lodhi and his wife are suffering from post-traumatic stress disorder and moderate to severe depression as a result of their experiences since 1997; ii) His wife contemplates killing herself and her children if their suffering goes on for very much longer; iii) There is concern that their youngest child will not develop psychologically in the absence of his father.[6]It appears to us that the facts of this case are very different from the facts of the (generally unreported) cases on which Mr Fitzgerald relied. In R v Secretary of State for the Home Department ex p Patel (1995) 7 Admin LR 56 Henry LJ had made it clear at p 65 that a defendant cannot rely on the passage of time caused by reason of his fleeing the country which sought his extradition. In the present case it was not until Mr Lodhi was arrested on entering this country in January 2000 that time would properly start to rum. Since that time it could not possibly be said that the UAE had been inexcusably dilatory in taking steps to bring him to justice. Such delays as have occurred have been largely attributable to the delays necessarily incidental to the proper accommodation by the English courts of the substantial challenges Mr Lodhi and his advisers have made to the UAE’s extradition requests.[7]In Fini v Governor of HMP Brixton [2002] EWHC 1473 (Admin) Silber J said at [17]:
“…[I]t is common ground that the onus is on the applicant to prove that in all the circumstances his return to Italy would be ‘unjust or oppressive’ because of the delay ‘having regard to all the circumstances’. Those circumstances include, as Kennedy LJ explained in Re Rosser [2001] EWHC Admin 1056, the interests of justice and the need to ensure that extradition proceedings are effective.”
[8]Mr Lodhi’s extradition is being sought on allegations that he has committed very serious crimes. Inevitably such an event is likely to cast a dark shadow over the lives of his wife and children, but it would be wrong to let this consideration lead to his discharge when his extradition has been promptly sought and timeously pursued (subject to the forgivable error about the two earlier witness statements). We therefore reject the submissions based on section 11(3)(b) of the 1989 Act.[9]The final ground of challenge requires more detailed consideration.

(d) of the 1989 Act, which provides that:

“6(1) A person shall not be returned under Part III of this Act, or committed or kept in custody for the purposes of return, if it appears to an appropriate authority - (d) that he might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions.”
This court on an application for habeas corpus is an “appropriate authority”: see section 6(9).[10]Mr Fitzgerald had relied on the same sub-section in connection with Mr Lodhi’s first application to this court, which dealt with the matter (and rejected his submissions) in paragraphs 89 to 98 of the first judgment. It began its analysis of the argument in these terms at para 89:
“It is common ground that the test to be applied is to determine whether there is a ‘reasonable chance’ or ‘substantial grounds for thinking’ that he will be so prejudiced ( Fernandez v Governor of Pentonville Prison [1971] 1 WLR 987 , 994) and that when considering this issue the court is not restricted to considering “evidence” in the strict sense ( Schtraks v Government of Israel [1964] AC 556 , 582). In support of his contention Mr Fitzgerald relies on evidence which shows, he says, a pattern of generalised, systematic discrimination against foreign nationals in the UAE, together with specific evidence of discrimination suffered by others in this case because of their nationality.”
[11]The court referred at paras 90 to 91 to the evidence on which reliance was then being placed. Much the same evidence has been placed before the court in support of the present application, with the significant addition of evidence from three UK nationals who have recently been detained in custody in one or other of the Emirates that compose the UAE. This evidence was designed to show that there was such serious discriminatory treatment of prisoners in UAE prisons on the grounds of their race or nationality that the statutory grounds for discharging Mr Lodhi under section 6(1)(d) were made out.[12]When we inquired about the origin of what is now section 6(1)(d) of the 1989 Act, we were taken to section 4(1)(a) of the Fugitive Offenders Act 1967. The Fugitive Offenders Act 1881, which preceded that statute, had contained no restrictions relating to offences of a political character. The new Act not only incorporated such provisions but also introduced for the first time into our statute book the additional restriction now seen in section 6(1)(d) of the 1989 Act. The language of the new provision mirrored the language of clause 7 of the Scheme for the Rendition of Offenders within the Commonwealth (“the Commonwealth Scheme”) 1966. It also, incidentally, reflected the language of Article 3.2 of the European Convention on Extradition 1957.[13]Mr Fitzgerald sought to rely on the rather wider language of Article 6.6 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (“the Vienna Convention”: see paras 5-6 of the first judgment for the relevance of this Convention). Article 6 is concerned with extradition, and Article 6.6 provides that:
“In considering requests received pursuant to this article, the requested State may refuse to comply with such requests where there are substantial grounds leading its judicial or other competent authorities to believe that compliance would facilitate the prosecution or punishment of any person on account of his race, religion, nationality or political opinions, or would cause prejudice for any of those reasons to any person affected by the request .” (Emphasis added).
[14]Article 6.6, however, is merely permissive in its terms, and we are bound to interpret the less wide language found in the 1989 Act. We are also unwilling to entertain a similar argument by Mr Fitzgerald based on the similar language used in Article 3.2 of the European Convention on Extradition, since the UAE is not a party to that convention.[15]The additional evidence on which Mr Fitzgerald mainly relied in this part of his case was the evidence of Mr Bamling and Miss Majakas, who were British citizens incarcerated in Abu Dhabi between October 1998 and December 2000, the evidence of Miss Katherine Jenkins, a British citizen detained in custody in Ras Al Khaimah and Dubai between November 2000 and April 2002, and the evidence of Dr Shaheen (Mr Lodhi’s wife) who was detained in Dubai between July 1997 and January 1998. Mr Al-Zarouni, the Senior Chief Prosecutor in Dubai, responded in a written statement to all this evidence apart from a second, more detailed, statement by Miss Jenkins which was filed shortly before the hearing started. We heard oral evidence from Miss Jenkins and Dr Shaheen, which included matters raised by Miss Jenkins in her later statement. We took into account the fact that Mr Greenwood had not had the opportunity to take his clients’ instructions on this later material.[16]The evidence of Mr Bamling and Miss Majakas, which came before us in the form of witness statements, did not assist us very greatly because their experience was limited to prison conditions in Abu Dhabi. If Mr Lodhi was sentenced and imprisoned, Dubai would be the emirate in which he would be held in custody prior to trial and in which he would serve any sentence that was imposed. Mr Bamling and Miss Majakas were involved with the work of a special school in Surrey, and they went to Abu Dhabi together for a short holiday in October 1998. They were arrested on arrival at Customs and subsequently charged with having cannabis and alcohol in their possession. Although they were convicted and given substantial prison sentences about a year later, they were pardoned and released at the end of 2000.[17]The general gist of Mr Bamling’s evidence was that he had received preferential treatment from the police officers at the prison because he was white and European and had the British Embassy behind him. There was a hierarchy of discrimination at the prison. Local prisoners would be treated best, and Pakistani and other Asian prisoners would be treated worst, both by the police officers and by the local prisoners. They would have to do any dirty work or cleaning work that was required. Mr Bamling gave evidence about the way in which prisoners who would not sign confessions were tortured by the police. The examples he gave all related to non-UAE nationals.[18]Miss Majakas spoke similarly of an institutionalised system of racism within her women’s prison. She said that the prison officers quite openly treated different races according to their ranking in this hierarchy, with Pakistanis, Indians and Bangladeshis at the bottom. The allocation of cell accommodation, for instance, demonstrated “the pecking order of races”.[19]Miss Jenkins was a flight hostess employed by a local airline, and she was arrested in Dubai in November 2000 when police found some drugs in her apartment which an Australian girl had left there. Although she was eventually acquitted the court proceedings against her were protracted because she was originally tried with a number of other defendants in the emirate of Ras Al Khaimah, where the courts took until May 2001 to rule that it was the courts of Dubai which had jurisdiction over the case. She was not sent back to Dubai until August and even then she was shuttled to and fro between the two emirates five times before she eventually found herself back in Dubai. She had about six months experience of custodial conditions in Dubai before she was ultimately acquitted and released in March 2001. The other defendants were all convicted, either in Dubai or in Ras Al Khaimah.[20]She described to us the conditions in which she was held in three different custodial establishments in Dubai. She was first held for about a week at the police station in Rifa. Each cell for female prisoners had three bunk beds and additional mattresses on the floor, and they were very crowded, with 10-14 women held in each. All the prisoners there were held in equally unsatisfactory conditions with no daylight, no ventilation, no scope for exercise, and the air conditioning was broken for some of the time.[21]She was then transferred to the public prosecutor’s prison in Dubai. This was a remand prison. On the whole there was less overcrowding, and although the food was very poor, there were beds and mattresses in the female section. She said, from what she had heard from others, that conditions there were better than in the other prisons in Dubai and the other emirates.[22]Miss Jenkins also spent short periods in Jamera jail, which is not usually used for remand prisoners. She said that conditions for women prisoners there were generally good, although the food was terrible. Every room had a TV, there were mattresses for the prisoners, and the rooms were clean.[23]Her evidence about conditions in men’s prisons in Dubai was inevitably secondhand. She was told that the male section of Rifa Police Station was filthy and extremely overcrowded. On one occasion she heard three Asian male prisoners being beaten by prison guards. At the prosecutor’s jail the men’s section was not so crowded. At Jamera, on the other hand, the men’s prison was seriously overcrowded. This overcrowding affected both UAE and non-UAE nationals in the same way.[24]Miss Jenkins was much more outspoken about prison conditions in Ras Al Khaimah. By western standards conditions there were seriously substandard, and she described them vividly in paragraph 29 of her witness statement.[25]She gave similar evidence to the other two English prisoners about preferential treatment for UAE nationals. She said that in prison UAE nationals were allowed more telephone calls and longer visits, they did not have to do chores like cleaning, and their court cases received faster handling. She, too, spoke of the hierarchy which she said existed both inside and outside prisons in the UAE. Arabs from other countries in the region received better treatment, and throughout the emirates Asians were not treated very well. Pakistanis, Indians and Bangladeshis were at the bottom of the heap. Her evidence about specific instances of insensitive or brutal treatment to Asian prisoners largely related to Ras Al Khaimah.[26]Dr Shaheen gave evidence from the perspective of an educated Asian woman who was detained in the public prosecutor’s prison in Dubai between 9th July 1997 and 28th January 1998. Her specific examples of bad treatment of non-UAE nationals related to four women prisoners who were Russian, British, Iranian and Ethiopian respectively, but she also spoke of the hierarchy of discriminatory treatment, which evidenced itself most clearly in the way prisoners of different nationalities were allowed access to the telephone. Dr Shaheen was very indignant that she had been detained in custody as a hostage for her husband, as she saw it. She was mainly concerned about the discriminatory treatment she felt she had received personally. In other respects her direct evidence of prison conditions did not add anything to the evidence given by Miss Jenkins.[27]In his short witness statement Mr Al Zarouni in general denied the criticisms which were being made by the applicant’s witnesses about conditions in Dubai. He said that Indians and Pakistanis were treated exactly the same as all other defendants of different nationalities, and that in Dubai only one law is applied for all people equally, whatever their race or nationality.[28]We were also shown the evidence about the work of the Human Rights Department of the Dubai police which was before this court at the first hearing. The aims and objectives of this department are to assert and comply with the principles of Islam and the directions of the emirate’s wise leaders; to respect individuals and to treat them with dignity and fairness regardless of their race, religion and colour; and to protect them and their properties. In Dubai police officers also serve as prison officers, and officers from the Human Rights section inspect the conditions of prisoners and ensure that their rights are protected.[29]The evidence Miss Jenkins gave about the better conditions in Dubai prisons was confirmed by the US State Department’s Country Report on human rights practices in the UAE for 2001. This report recorded that Dubai prison conditions generally met international standards, although the UAE Government did not permit independent monitoring of prison conditions.[30]The report also showed that when the President of the UAE pardoned 6,000 prisoners in June 2001, the pardon was granted to 5,300 expatriates and 700 UAE nationals, drawn from all seven emirates.[31]Finally, Mr Fitzgerald showed us the proceedings of the United Nations Committee which considered the latest periodic report by the UAE pursuant to the International Convention on the Elimination of all forms of Racial Discrimination in August 1995. It is evident that the committee was concerned about the inadequacy of the information in the report about the legislative, judicial, administrative or other measures taken to give effect to the Convention, and that it took the view that it had been provided with insufficient information about effective remedies against acts of racial discrimination. Although it sought a comprehensive report in two years’ time, Mr Greenwood was unable to tell us whether any further report had ever been lodged.[32]On a different topic, Mr Fitzgerald referred us to the evidence we received about the way in which court proceedings in the UAE are not translated for the benefit of defendants who do not speak Arabic. It is quite clear from this evidence, which we need not set out in detail, that an interpreter will generally only be provided when a judge wishes to speak directly to a defendant or to hear what a defendant wishes to say. Otherwise a defendant has to rely on his/her lawyer, if any, to explain what has been going on.[33]So far as this is concerned, Mr Greenwood referred us to the explicit assurances given by the Attorney-General (Public Prosecution) of Dubai to the effect that “Mr Lodhi will have the benefit of an interpreter/translator of his native language both during the investigation stage and at each stage throughout the trial proceedings, ie both during the prosecution evidence and during any defence evidence”. In the absence of any evidence that the UAE cannot be trusted to give effect to an assurance of this kind, given to this country in support an extradition request, it appears to us that we are bound to give weight to this assurance, whatever may be the practice of UAE courts in other cases.[34]We return, then, to Mr Fitzgerald’s central submission. In our judgment there is clear evidence that in the UAE there is a general tendency to discriminate against non-UAE nationals on the grounds of their race or nationality. Non-Arabic Asian people are the principal victims of this tendency, and those who come from the three countries on the Indian sub-continent may be treated worst of all. This tendency appears to be universal throughout the emirates, and there appears to be no anti-discrimination legislation in place to enforce the international obligations the UAE has undertaken. In the prisons this tendency is most evident in the way UAE nationals may be given preferential treatment in relation to prison visits, to access to a telephone, to relief from unpleasant prison chores, and to the speed and efficiency with which their court cases are conducted.[35]On the other hand there is no evidence of any official policy of treating non-UAE nationals less favourably than UAE nationals in prison in Dubai, and the published objectives of the UAE Police Service (which is responsible for the prisons) witness an official determination to treat all people equally, whatever their race, religion or colour. This official stance is confirmed by Mr Al-Zarouni in his statement. There are likely to be occasions when individual police officers treat individual prisoners, even in Dubai, less favourably because of their race or national origin, but there is no evidence that any such treatment receives official blessing.[36]It is also apparent that the Dubai judiciary, which is almost entirely made up of expatriate judges, has no practice of treating non-UAE nationals unfairly because of their race or nationality. This matter was mentioned in paragraph 93 of the first judgment, and it is also apparent from the new evidence we received.[37]Mr Greenwood accepted that if there was evidence that prisoners in any given country systematically received less favourable treatment in a significant way while serving their sentences by reason of their race or nationality, and if those responsible for the prisons either approved and encouraged such treatment or turned a blind eye to it, then a court could conclude that there was a reasonable chance that a defendant returned to that country might be punished in a way which would be attributable to his/her race or nationality within the meaning of section 6(1)(d). He submitted that there was no such evidence in the present case. We agree with him. While we have no doubt that there will be occasions when Pakistani prisoners in Dubai jails may encounter less favourable treatment from individual police officers than that accorded to UAE nationals, this is a slender basis for a conclusion that, taken as a whole, their punishment may be significantly more severe.[38]For these reasons we dismiss this application.

Cited in 2 later judgments