England and Wales High Court (Administrative Court) Decisions

LODHI v. GOVERNOR OF HMP BRIXTON and GOVERNMENT OF UNITED ARAB EMIRATES [2001] EWHC Admin 178 (13th March, 2001)

Case No: CO/3635/2000

Neutral Citation Number: [2001] EWHC ADMIN 178

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Tuesday 13th March 2001

Part Paragraph

1 Introduction 2

2 The Extradition Act 1989 12

3 The issues on this application 19

4 Section 6 issues: (i) The validity of the s 6(4) undertaking 20

5 Shari'a courts 25

6 The prosecution case in Dubai 28

7 The trial in Dubai 45

8 Section 6 issues: (ii) Autrefois acquit 51

9 Section 6 issues: (iii) The status of Mr Lodhi and autrefois

convict 54

10 Section 6 issues: (iv) Prejudice on the grounds of

nationality 89

11 The effects of the European Convention on Human Rights

on extradition 99

12 Section 11 issue: Bad faith 106

13 Section 9 issues: (i) Non-disclosure 108

14 Section 9 issues: (ii) A prima facie case 116

15 Section 9 issues: (iii) The formulation of Charge 1 153

16 Conclusion 154

LORD JUSTICE BROOKE :

1. This is the judgment of the court.

Part 1 Introduction

2. This is an application for habeas corpus by Mohammed Fakhar Al Zaman Lodhi ("Mr Lodhi") seeking his release from Brixton Prison following his committal by a district judge sitting at the Bow Street Magistrates' Court on 21st September 2000 on six charges relating to drug offences for which his extradition has been sought by the Government of the United Arab Emirates ("UAE"). The Secretary of State has given authority to proceed by authorities signed on 3rd April and 4th May 2000.

3. All the charges on which Mr Lodhi was committed related to the period between 1st December 1995 and 21st June 1997. They were in three pairs. Charges 1, 5 and 11 charged him with conspiracy with two named persons and other persons listed in the request, and Charges 2, 6 and 12 charged him with substantive offences on his own account. The second and third pairs of charges related to the supply of what are known as precursor chemicals (potassium permanganate in one case and sulphuric acid in the other), knowing or suspecting that they were to be used in or for the unlawful production of a controlled drug, namely Methaqualone. The first two charges, to which the prosecution attach most importance, should be set out in full:

"Charge 1: that he between the 1st day of December 1995 and the 21st day of June 1997 conspired with Vijay Giri Anand Giri Goswani, Vijay Boudali Desai and other persons (listed on page 4 of the request) to produce a controlled drug, namely Methaqualone (Mandrax).

Charge 2: that he between the 1st day of December 1995 and the 21st day of June 1997 was concerned in the production of a controlled drug, namely Methaqualone."

4. It is suggested in these papers that this is the first occasion on which the Government of the UAE has sought the extradition of a defendant from this country. Her Majesty's Government has no bilateral extradition treaty with the UAE, and the treaty obligations invoked by the Government of the UAE came into existence as recently as 1st September 1997, when the Extradition (Drug Trafficking) Order 1997 came into force.

5. This order gave effect to this country's obligations under the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (signed in Vienna on 20th December 1988) ("the Vienna Convention"). The convention itself is annexed as a schedule to that order, which was made pursuant to sections 4(1) and 22(3) of the Extradition Act 1989 as amended ("the 1989 Act"). The UAE are one of the states named in Part I of Schedule 3 of this order, which by Article 3 applies the extradition procedures contained in Part III of the 1989 Act to such a state, subject to the provisions of Part II of Schedule 3 of the order. It was not suggested that the offences for which Mr Lodhi's extradition was sought did not fall within the embrace of the order.

6. As the preamble to the Vienna Convention shows, the states which were parties to it recognised that illicit traffic in narcotic drugs was an international criminal activity, the suppression of which demanded urgent attention and the highest priority. They expressed deep concern about the magnitude of the illicit production of such drugs, which "pose a serious threat to the health and welfare of human beings and adversely affect the economic, cultural and political foundations of society", and recognised "the importance of strengthening and enhancing effective legal means for international co-operation in criminal matters for suppressing the international criminal activities of illicit traffic". The existence of these concerns is reflected in Article 2 of the convention, and Article 6 provides the internationally agreed framework within which this country enacted the 1997 order. Although Article 6(7) contains an undertaking by the parties to the convention "to simplify evidentiary requirements relating [to extradition procedures] in respect of any offence to which this article applied", this international obligation cannot water down the requirement under our national law that the evidence submitted by a requesting state must satisfy the requirements of section 9(8) of the Act (see also in this context section 22(5)).

7. In these circumstances we are quite unable to accept the submission of Mr Fitzgerald QC that the UAE must somehow or other be regarded as a second class state in extradition terms because it is not a party to a general bilateral extradition treaty with this country. As is the case with anti-terrorist treaties, this country has bound itself by treaty to co-operate on an international stage in the fight against illicit traffic in narcotic drugs. In this respect we accept Mr Greenwood QC's submission that there should be a fundamental assumption of good faith on the part of the requesting state (R v Governor of Pentonville Prison ex p Lee [1993] 1 WLR 1294, 1300), and that we ought to accord the treaty and the statute "a broad and generous construction so far as the texts permit to facilitate extradition" (Re Ismail [1999] AC 320, per Lord Steyn at pp 326-7). The importance attached by the parties to the Vienna Convention to the policy aims of the convention will also be of significance when we come to consider some of Mr Fitzgerald's submissions which seek to import consepts derived from ECHR jurisprudence into our analysis of the issues in this extradition case.

8. The offences for which Mr Lodhi's extradition is sought were allegedly committed in the UAE between 1995 and June 1997. At the end of the third week of June 1997 officers of the narcotics department of the Dubai police authority raided a number of premises in Dubai, Umm Al Qwain and Sharjah. They found a large quantity of material and equipment used in connection with the manufacture and storage of Mandrax tablets, and they arrested up to 20 non-UAE nationals for various offences connected with this enterprise. Mr Lodhi, who is a Pakistani national, had at that time been living with his family in the UAE for about 11 years. He was a successful businessman there and his wife worked for the ministry of health as a doctor. At the time of the police raids some of the arrested defendants mentioned Mr Lodhi's name to the police. The police thereupon obtained warrants to search both his business premises in Sharjah and his home. At the former they found a large quantity of incriminating material and equipment stored in a warehouse, and at the latter they found what they asserted to be an incriminating piece of paper in the pocket of one of his suits. Mr Lodhi's wife was arrested and detained in custody for about eight months, but her husband escaped to Singapore, where she joined him with their children following her release from custody.

9. In January 2000 Mr Lodhi, travelling under a false name with a false passport, came to London with his wife when she was seeking medical treatment in England. By this time he had been convicted in his absence by a first instance criminal court in Dubai, together with eight others (two of whom were also convicted in their absence), of an offence of bringing, importing, transporting, possessing and exporting Methaqualone for "trading and promoting outside the legally permitted circumstances" and of using it in the manufacture of Mandrax tablets. For this offence he and the others were sentenced to life imprisonment and fined 200,000 Dirhams. In December 1999 the appeals of those defendants who had been present in Dubai for the trial were dismissed by the first level appeal court in Dubai.

10. An unusual feature of the case is that one of the other two men who were convicted of that offence by the Dubai court in their absence was Sheikh Abdulla Rashid Bin-Ahmed Al-Mualla, the son of the Ruler of Umm Al Qwain. This defendant was at the material time the chief of police in Umm Al Qwain, and the Dubai prosecutors alleged that the five men at the heart of this conspiracy, who included the sheikh, met at his offices in the police headquarters in that emirate and agreed to pay him a million Dirhams (about £160,000) a month "to provide necessary protection for them and to prevent police intervention to them". The Dubai police have no power to arrest anyone in Umm Al Qwain without the permission of the appropriate authorities there, which has not been forthcoming in relation to the proposed arrest of the ruler's son. The sheikh has therefore remained at large, taking a full part in the social and political life of Umm Al Qwain, despite the fact that since June 1999 a warrant has been issued by the authorities in Dubai for his arrest as a man convicted of serious drug offences, for which he has been sentenced to life imprisonment by a court in Dubai.

11. Mr Lodhi was arrested on his arrival in this country and detained in Brixton Prison. The committal proceedings were heard by District Judge Workman over a total of four days between 17th May and 7th September 2000, and he made three separate written rulings on 26th May, 31st July and 21st September 2000. We will refer to these rulings when we consider the various arguments we received from Mr Edward Fitzgerald QC who has appeared for Mr Lodhi on this habeas corpus application. In the result Mr Lodhi was discharged in respect of ten of the charges on which his committal was sought and committed on the remaining six. This application for habeas corpus was lodged within the 15 days permitted by section 11(2) of the 1989 Act.

Part 2 The Extradition Act 1989

12. On such an application this court is an "appropriate authority" within the meaning of section 6 of the 1989 Act (s 6(9)). The provisions of section 6 on which Mr Fitzgerald places reliance on Mr Lodhi's behalf are, so far as is material, in these terms:

"(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 this court] -

....

(d) that he might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his ... nationality ...

(2) A person who is alleged to be unlawfully at large after conviction of an extradition case shall not be returned to a foreign state ... or committed or kept in custody for the purposes of return to a foreign state ... if it appears [to this court] -

(a) that the conviction was obtained in his absence; and

(b) that it would not be in the interest of justice to return him on the ground of that conviction.

(3) A person accused of an offence shall not be returned, or committed or kept in custody for the purposes of return, if it appears [to this court] that if charged with that offence in the United Kingdom he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction."

We will refer at a later stage of this judgment to the rather specialist provisions of section 6(4).

13. Section 11 of the Act contains another provision on which Mr Fitzgerald relies. This section is concerned exclusively with the jurisdiction of this court - the phrase "appropriate authority" in section 6 is apt to include also the Secretary of State and the court of committal (s 6(9)) - and so far as is material, section 11(3)(c) reads:

"Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant's discharge if it appears to the court in relation to the offence, or each of the offences, in respect of which the applicant's return is sought, that -

....

(c) because the accusation against him is not made in good faith in the interests of justice,

it would, having regard to all the circumstances, be unjust or oppressive to return him."

14. Section 11(4) of the Act gives this court express power to receive additional evidence relevant to the exercise of its jurisdiction under section 6 or section 11(3). It follows that the court has an original jurisdiction to consider all the issues that may arise for its consideration under section 6 or section 11(3), although if the district judge, having heard oral evidence on issues of disputed fact (including issues of foreign law), made findings of fact in relation to those issues, we would be bound to adopt those findings of fact unless they were vitiated by errors of law of a type familiar to a court exercising a supervisory jurisdiction.

15. Section 9 of the Act prescribes the procedure to be adopted for a person's committal following his arrest in pursuance of a warrant issued under section 8, as happened in Mr Lodhi's case. The only part of that section which is relevant for present purposes is section 9(8) which provides that:

"Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied, after hearing any representations made in support of the extradition request or on behalf of that person, that the offence to which the authority relates is an extradition crime, and is further satisfied -

(a) where that person is accused of the offence ... that the evidence would be sufficient to make a case requiring an answer by that person if the proceedings were the summary trial of an information against him;

(b) where that person is alleged to be unlawfully at large after conviction of the offence, that he has been so convicted and appears to be so at large,

the court, unless his committal is prohibited by any other provision of this Act, shall commit him to custody or on bail -

(i) to await the Secretary of State's decision as to his return; and

(ii) if the Secretary of State decides that he shall be returned to await his return."

16. The approach of this court on a challenge to a decision by the court of committal that it is satisfied of the matters set out in section 9(8) of the Act is different from that which it will adopt when its own powers under section 6 or section 11(3) are directly invoked. In R v Governor of Pentonville Prison ex p Osman [1990] 1 WLR 277 Lloyd LJ discussed at pp 300-301 the various tests which had been suggested in earlier cases of high authority and concluded:

"As so often happens, the difference between the various approaches is, in our view, more apparent than real. Thus, if in a particular case, there was no credible evidence to support committal on a charge, no reasonable magistrate would commit on that charge unless he had made some error of law, eg by misunderstanding the nature of the offence. In such a case one could say that the court was justified in interfering either because there was no evidence to support the committal, or, because no reasonable magistrate would commit on that evidence, or, because the magistrate must have been guilty of an error of law. It all comes to the same thing in the end. But since the point has been raised for our decision, we would say that the correct approach is best defined in Wednesbury terms. That at least has the advantage of being well understood, as well as keeping this branch of the law in line with the task of the Divisional Court in other aspects of its jurisdiction."

17. More recently, in R v Governor of Brixton Prison ex p Kashamu (Administrative Court transcript, 6th October 2000) Pill LJ has identified a different possible line of challenge to a committal court's decision. In that case this court admitted as new evidence disclosed by the Government of the United States of America a report which was in its possession before the extradition request was made. This report inevitably cast doubt on the reliability of part of the evidence on which the decision to commit was made. Counsel for the US government accepted that the failure to disclose the information in this report vitiated the committal and rendered the committal order void. Although the court was referred to no earlier case which went further than to suggest, obiter, that fraud or collusion on the part of a requesting power might enable this court to interfere with a committal decision (see ex p Schtraks [1964] 1 QB 191 per Lord Parker CJ at p 196 and Salmon J at p 199), Pill LJ clearly did not wish to go so far in the light of the government's concession. He said (at para 26):

"I do not need and would not wish to categorise the conduct of the Government as anything other than the error of judgment it is conceded to be. It should not have occurred, as the Government accept. It had a fundamental effect on the proceedings before the magistrate. By reason of the disclosure of a part only of Fillmore's crucial evidence, the proceedings before the magistrate were unfair. The Government were, in my view, correct to concede that in the circumstances the court should intervene."

18. A little later (at para 39) he said, without going into further details, that it appeared to him that a statement made by Ognall J (with which Watkins LJ agreed) in R v Governor of Pentonville Prison ex p Lee [1993] 1 WLR 1294, 1300C, to the effect that under the 1989 Act "fairness is not a criterion relevant to the function of the committing court" could not stand in the light of the Human Rights Act 1998 (which had come into force four days earlier) and Articles 5 and 6 of the European Convention on Human Rights. We will return to this topic in paragraphs 99-105 and 111-115 of this judgment. At present it is necessary only to say that Pill LJ's reference to the effect of Article 6 of this convention should be treated with the greatest caution in an extradition context.

Part 3 The issues on this application

19. The issues we have to consider on this application can be divided under three main headings:

(a) Section 6 issues

(i) The validity of the s 6(4) undertaking;

(ii) Autrefois acquit;

(iii) The status of Mr Lodhi and autrefois convict;

(iv) Prejudice on the grounds of nationality.

(b) Section 11 issue

Bad faith.

(c) Section 9 issues

(i) Non-disclosure;

(ii) A prima facie case;

(iii) The formulation of charge 1.

Part 4 Section 6 issues: (i) The Validity of the s 6(4) undertaking

20. We can deal with the section 6(4) point quite briefly. This sub-section provides that:

"(4) A person shall not be returned, or committed or kept in custody for the purposes of such return, unless provision is made by an arrangement made with the relevant foreign state ... for securing that he will not, unless he has first had an opportunity to leave it, be dealt with there for or in respect of any offence committed before his return to it other than -

(a) the offence in respect of which his return is ordered;

(b) an offence, other than an offence excluded by sub-section (5) below, which is disclosed by the facts in respect of which his return was ordered; or

(c) subject to sub-section (6) below, any other offence being an extradition crime in respect of which the Secretary of State may consent to his being dealt with."

The references to sub-section (5) and (6) take the matter no further.

21. There is before the court an undertaking in precisely these terms, addressed by the UAE minister of justice to the central authority of the United Kingdom. The minister says that he is empowered to make the statement on behalf of the whole of the UAE government and legal system to the terms of the undertaking. Mr Fitzgerald says that this is insufficient. He relies in this respect on a dictum of Simon Brown LJ in R v Secretary of State ex p Launder (No 2) [1998] QB 998, 1003 in which he said that this court was entitled to enquire into the validity, under the law of the Hong Kong Special Administrative Region, of an undertaking of this nature given by its chief executive. Simon Brown LJ accepted that the court would not inquire into the good faith of a foreign government with which Her Majesty's government had diplomatic relations (R v Governor of Brixton Prison ex p Kotronis [1971] AC 250, 278-9), but he said, nevertheless, that the court was entitled to investigate the relevant foreign law to see whether it provided the specialty protection required by the Act (see ex p Alice Woodall (1888) 20 QBD 832)..

22. Mr Fitzgerald maintained that the expert evidence his client adduced showed (i) that the judiciary was very much subservient to the executive in the UAE and could not properly be regarded as independent; (ii) that the executive did not determine what charges an accused person faced, which was a matter for the courts; and (iii) that the Shari'a courts had criminal jurisdiction. He said that in the absence of any "abuse of process" jurisdiction in the UAE (for which see ex p Launder (No 2) at p 1007) there was no safeguard to prevent further charges being laid against Mr Lodhi once he arrived back in UAE.

23. Mr Greenwood, for his part, reminded us that even in ex p Launder (No 2) Simon Brown LJ had said at p 1004 that the court should not shut its mind entirely to considerations of comity. He had also added that a degree of judicial restraint at least was called for, and that the court should tread with some delicacy in the field of the constitutional law of a foreign state. Mr Greenwood said that the undertaking of the UAE minister of justice had been given to Her Majesty's government and as such was binding on the UAE in international law. He said, correctly, that there was no suggestion in the evidence that the minister's action in giving the specialty undertaking was invalid by the law of the UAE. Indeed Mr Lodhi's expert witness, when shown the undertaking for the first time in the witness-box in the magistrates' court, said immediately that he would expect the courts in the UAE to abide by it. UAE's expert witness had given evidence to similar effect. The only other expert evidence, adduced for the first time in this court, did not go to the question whether an undertaking which was binding in international law would be treated as binding by courts in the UAE, and was therefore unhelpful on this point.

24. We are therefore of the opinion that there is nothing in section 6(4) of the 1989 Act to bar Mr Lodhi's extradition if all the other legal prerequisites for extradition are in place.

Part 5 Shari'a courts

25. We must not leave this topic, however, without saying something about Mr Fitzgerald's reference to Shari'a courts. So far as UAE law is concerned, Mr Lodhi was charged with an offence contrary to Article 49(3) of the UAE Federal Narcotics Law (No 14 of 1995) which prescribes a maximum sentence of life imprisonment for a first offender. In contrast, Article 48 of that law, which is concerned with narcotic material of a different class, prescribes the death penalty if the crime was committed with the intention of trade and promotion. Unlike most of the other emirates, Dubai has retained its own hierarchy of courts which apply both local Dubai law and also federal law as it is accepted to apply in Dubai. Although an appellate court in Dubai has power to increase the sentence imposed by a lower court, life imprisonment is the maximum sentence available for a first offence under Article 49(3). There are no Shari'a courts in Dubai.

26. The reference to Shari'a courts, therefore, appears to be a reference to the provision of the UAE Constitution (Article 7) which prescribes that the Islamic Shari'a shall be a main source of legislation in the UAE. Article 6(1) of the federal law No 3 of 1996 appears to give jurisdiction to Shari'a courts to review narcotics crimes, and Mr Ian Edge, an expert witness for Mr Lodhi, has explained that the Quran enjoins Muslims to fight against the enemies of God and Islam, and prescribes that if these enemies do not recant they may be put to death. He added that in some countries, such as Iran and Saudi Arabia, these provisions were the basis for calls for the death penalty against serious felons such as drug pushers and drug dealers, who are considered the enemies of God and Islam and therefore deserving of death. Mr Edge suggested that it was perfectly feasible for the same arguments to be used by the public prosecutor in Dubai.

27. In our judgment, whatever other arguments Mr Fitzgerald might seek in due course to raise about the possibility of the death penalty, a matter on which he expressly invited us not to make any definitive ruling, behaviour of this kind by the public prosecutor in Dubai would be effectively proscribed by the terms of the minister's undertaking, on which Her Majesty's government is entitled to rely. The offence in respect of which Mr Lodhi's return is sought is an offence contrary to Article 49(3) of Law No 14 of 1995, for which the maximum sentence is life imprisonment.

Part 6 The prosecution case in Dubai

28. Before we consider questions relating to Mr Lodhi's status as a convicted or an accused person, or to the pleas of autrefois convict and autrefois acquit, or the other arguments raised by Mr Fitzgerald under Sections 6 and 11, it is necessary to say something about the course of proceedings before the courts in Dubai and about the prosecution case that was deployed in those courts. Although the Rogatory Request contains a summary of the case and of the facts prepared on behalf of the Attorney-General, we have preferred to go back to the judgment of the three judges of the first instance court in Dubai for this material.

29. We must first explain why we are taking this course when we are conscious that very little of the evidence in which Mr Lodhi's name was mentioned would be admissible against Mr Lodhi in an English court. Of course, when we come to consider whether the committal papers established a prima facie case against him, we must limit ourselves to examining the evidence in the committal bundle as if we were considering, on an application of no case to answer in a summary trial, whether the prosecution had established a prima facie case as a matter of English law. We have been invited, however, to rule that the application for Mr Lodhi's committal was not made in good faith, and/or that there are substantial grounds for believing that he would face discrimination on the grounds that he does not possess UAE nationality if he were returned to face trial in the Emirates. For the purpose of being able to make such rulings, it is essential that we should look at the wider picture, including the picture as viewed by the Dubai police and prosecuting authorities. We also need to understand the course taken by those proceedings in order to make a meaningful ruling on the plea of "autrefois acquit".

30. First, it is necessary to say a little about the political context. The UAE is a federation of seven emirates, established in 1971. It has a population of 2.2 million, at least 80% of whom are foreign workers. The two best known of the emirates are Abu Dhabi and Dubai, both of whom have very substantial oil reserves. Of the five other emirates, Sharjah and Umm Al Qwain feature in the present story.

31. None of the emirates has any elected institutions or political parties. Political allegiance is defined in terms of loyalty to tribal leaders, and in accordance with the 1971 constitution, the seven emirate rulers constitute a federal supreme council, which is the highest legislative and executive body. The members of the council elect their president and vice-president, and the president appoints the prime minister and cabinet. According to a recent country report issued by the US State Department, the judiciary generally is independent, but its decisions are subject to review by the political leadership. Most of the judges are foreign nationals, primarily from other Arab countries, although the ministry of justice has trained some civilians as judges and prosecutors. As we have already said, Dubai has retained its own court system. So far as the police are concerned, each emirate maintains its own independent police force. While all emirate internal security organs are theoretically branches of one federal organisation, in practice they operate with considerable independence.

32. As we have already said, this case is concerned with the discovery by the Dubai police in June 1997 of a major enterprise concerned with the manufacture of Mandrax tablets in the UAE. The tablets were intended for export and distribution in African countries. Mandrax tablets are composed of a mixture of Methaqualone, a sedative hypnotic drug, and Dipenhydramine, a sedative antihistamine. They were marketed in this country (where Methaqualone is now a Class B drug) until about 20 years ago, and they are now very popular in the countries of eastern and southern Africa. Between 1990 and 1996 very large quantities of Methaqualone were seized by law enforcement agencies in India. It was probably the activity of the Indian authorities which drove some of those at the centre of the conspiracy with which this case is concerned to relocate their source of production westwards in the UAE. When the Dubai police swooped in June 1997 they uncovered six tons of Methaqualone, as well as chemicals sufficient to produce a further 12 tons.

33. The judgment of the first instance criminal court of Dubai, which was handed down by a panel of three judges on 12th June 1999, shows the way in which the prosecution put its case against 24 defendants, six of whom, including Mr Lodhi, were tried in their absence. The judges convicted 18 of the defendants and acquitted six.

34. The prosecution case is summarised on pages 3-6 of the judgment. They asserted that five of the defendants, including Mr Lodhi and Sheikh Abdulla, conspired to set up a plant for the production of illicit drugs. They held meetings for this purpose at the sheikh's office in the police headquarters in Umm Al Qwain. The object of the conspiracy was to manufacture Mandrax. The first defendant, Vijay Giri Anand Giri Goswani (known as Vicky), was to import Methaqualone from abroad. As we have already said, the sheikh was to receive 1 million Dirhams per month as protection money and to prevent police intervention. The other two conspirators were called Vijay Boudali Desai ("Desai") and Ziad Ahmed Mohamed Abbah Ji ("Abbah Ji").

35. A site was chosen in a remote place in the desert in Umm Al Qwain, and steps were taken to transfer this property into the name of Vicky on the pretext that he was an investor. The finance was to be provided by Vicky, Mr Lodhi and Abbah Ji, and Vicky and two of the other defendants set about importing the materials needed for the manufacture of Mandrax. Reference was made to three shipments of Dipenhydramine and four shipments of Methaqualone and other chemicals.

36. The prosecution said that Desai then brought a number of technical experts from India to erect and commission the necessary machines and to manufacture the Mandrax. He also imported the equipment and plant after it had been paid for by Mr Lodhi on the recommendation of the sheikh. Mr Lodhi was said to have provided other quantities of chemicals and equipment, and he was also responsible for recruiting three of the other defendants (his brothers Mohammed and Hamoud Lodhi and a man called Al Shaar) who were said to have carried out the manufacturing process in all its stages with the help of two of the other defendants. Five of these six men, including Mr Lodhi himself, were Pakistanis, and Al Shaar was Syrian. Two of the other alleged conspirators were Syrian, and most of the rest were Indian. The sheikh was the only UAE national involved in the plot.

37. The prosecution case was that this team suggested that manufacture of Mandrax should start on a temporary basis in the pump room of the water pool at premises called Dreamland in Umm Al Qwain. These premises belonged to the sheikh and Abbah Ji, and production would continue there until the plant in the desert was completed. Mr Lodhi made appropriate arrangements to transport to the Dreamland pump room the equipment imported by Desai, and it was duly installed there. He also used a warehouse at the premises of his company Ideal General Trading Company ("IGT") in Sharjah to store the chemicals and some of the equipment used in the manufacturing process, and he used a villa he had leased on the beach at Umm Al Qwain as a place for some of the manufacturing processes.

38. The prosecution alleged that the Mandrax tablets were produced to a specification prepared by Desai, who had long experience in the field. Two pieces of paper were found which recorded this specification, one in the possession of Mr Lodhi's brother Hamoud and the other in the possession of one of the Syrian co-defendants, a man named Al Saqqa. The Mandrax tablets were produced in "plentiful supplies". All five of the principal conspirators and two others (including Mohammed Lodhi) were then said to be in "attendance and supervision and follow up". When produced, the tablets were weighed and packed and hidden in soap powder and biscuit cartons, and kept in a casino attached to the sheikh's garden. He had made the casino available for this purpose, with the knowledge of Al Shaar, Al Saqqa and Mr Lodhi's two brothers. Reference was also made to a storage place behind a laundry in Umm Al Qwain. The cartons were stored there while awaiting shipment abroad.

39. Mr Lodhi, through his brother Mohammed Lodhi, was then said to have imported new equipment from the United States, and the production process started in the desert factory as well. Concurrent activity in the two factories led to "plentiful" production of Mandrax tablets, and Mr Lodhi made arrangements to export tonnes of them to Africa from UAE ports in different shipments through one of the sheikh's companies. Vicky then sold the tablets at a price of two or three dollars each, and this trading income was distributed between the conspirators, sometimes at the sheikh's office and sometimes in his guest house.

40. The prosecution alleged that at the beginning of 1997 the conspirators fell out. Vicky and Desai wished to establish a third production plant, this time in Dubai, and a villa in the Garhoud area was rented for this purpose. Mr Lodhi was not involved in the Dubai end of the conspiracy. Some of the 24 defendants were concerned only with what happened in Dubai, while others were concerned only with what happened in Umm Al Qwain. Mr Lodhi's IGT warehouse, where some of the materials and equipment was stored, was in Sharjah.

41. It is not necessary for the purposes of this judgment to say very much about the Dubai end of the manufacturing process except that a man called Sajid played a prominent part in it. Suffice it to say that in due course the Dubai police authorities obtained warrants and on 20th June 1997 conducted raids on premises in Dubai which were found to be concerned with the storage or manufacture of the drugs. At the villa in Garhoud the police found 843 kilograms of Mandrax tablets and items of different kinds needed for the manufacturing process, and they also found a quantity of chemicals in a storage warehouse. They also arrested Sajid at the villa, and it appears that he then "guided" the police to the Umm Al Qwain desert factory.

42. At that factory they found and arrested four of the defendants, including Al Shaar and Hamoud Lodhi. These men had been engaged in loading a truck with gunny bags filled with rice. These bags, when examined, were found to contain 3.945 kilograms of Mandrax tablets. The prosecution described the other incriminating material they found in other raids carried out at this time, including equipment and instruments and chemicals in the IGT warehouse.

43. Pages 7-18 of the judgment contains a summary of the admissions attributed to seven of the defendants, including Desai, Al Shaar and Hamoud Lodhi, during the investigations carried out by the prosecution prior to the trial. It was on these admissions that much of the prosecution's case was built up. In the event, only Desai and Al Shaar pleaded guilty (pp 14 and 16). A number of the other defendants, including Hamoud Lodhi, claimed that their admissions had been obtained by duress (p 47), but the court rejected these pleas (p 48) and considered that it was safe to rely on their admissions.

44. It appears from the police evidence that the authorities in Dubai had first obtained information about a conspiracy as early as December 1996, and they kept surveillance on some of the defendants, including Mr Lodhi, from that time onwards. They timed their raid to coincide with a day when they knew that one of the conspirators, a chemicals expert, was due to leave Dubai - he was arrested at the airport - and another, Desai, was due to arrive back from a trip abroad. They were guided to Mr Lodhi's residence, which they searched with a warrant, by one of the men they arrested in Dubai. Al Shaar was arrested while trying to escape when they were guided to the desert factory, and it appears to have been this man who gave the police information which led them to the production unit in the Dreamland garden.

Part 7 The trial in Dubai

45. At the end of the trial 11 of the defendants, including Mr Lodhi, were convicted and sentenced to life imprisonment. They were also fined 200,000 Dirhams and sentenced to deportation. The sheikh received the same sentence and fine, but was not sentenced to deportation, being a UAE citizen. Lesser sentences were given to six of the defendants, and the other six, including IGT, were acquitted. Among the ancillary orders made by the court was a direction ordering the return to Mrs Lodhi of a quantity of jewellery and ornaments which had been seized from a safe in her house when it was searched in August 1997. The court accepted her evidence that this was her own property, and that she was a doctor earning a salary in her own right in the ministry of health.

46. We have been furnished with transcripts of the evidence given at the trial by Al Shaar and by two of the police officers who were involved in the raid on the desert factory. The first of these officers, a man called Qassim, said that he had been engaged on the original raid with other members of the police narcotics department, and that after Sajid had been arrested he was questioned for about two hours before being taken to police headquarters. The following day Sajid accompanied the police to the desert factory. This factory was three kilometres from the nearest human settlement. They waited near the factory for about an hour and a half until they saw a man (Al Shaar) moving behind it, and they then went up to him and arrested him. Police officers from the Umm Al Qwain police force then arrived at the scene, and he was put into an Umm Al Qwain police vehicle. Al Shaar told them he had gone for a walk to relieve himself. The officer in charge was in possession of a warrant from the public prosecutor.

47. Qassim then described how the raid on the desert factory proceeded. He was asked if he saw any vehicles at the site, and after describing two vehicles, he added:

"A Lexus vehicle also came towards the warehouse from the main road. It slowed down but did not stop. When we asked the three individuals we had arrested about the vehicle and who was driving it, they said it was Coco [Mr Lodhi]."

48. Towards the end of his questioning, the court disallowed questions posed to this witness by the representative of the Ruler of Umm Al Qwain who wished to ask him who had authorised the Umm Al Qwain police to conduct the arrest operation in conjunction with the Dubai police.

49. Lieutenant Said Abdulla gave evidence along the same lines. He spontaneously volunteered evidence about the Lexus car. For his part, he said that it was through subsequent inquiries of the Umm Al Qwain police that the Dubai police learned that it belonged to Mr Lodhi and that he had been driving it.

50. When Al Shaar gave evidence at the trial, he said nothing about the Lexus car. He does not appear to have been asked about a car.

Part 8 Section 6 issues: (ii) autrefois acquit

51. It is not easy for an English reader to understand all the technical points of UAE law and procedure which are recorded in the judgment. It appears that the first charge was made against at least six of the defendants and referred to the Dubai side of the operation. The other very serious charge was the second charge, which at least nine of the defendants faced, including Mr Lodhi. It appears that it was alleged that they

"bought, imported, transported, possessed, manufactured, produced and exported the narcotic methaqualone for trading and promoting outside the legally permitted circumstances and used it in the manufacture of mandrax tablets and were able to manufacture several tonnes of the same most of which was exported abroad of which 3,945.2 kgs was prepared for export was caught, the aforementioned had agreed to establish 2 factories to produce the same in Emirate of Umm Al Qwain and each of them played the role given to him as detailed in the beginning of this judgment."

52. On pages 61-63 the court analysed the ingredients of these charges, which reproduce the language of Article 49 of the UAE narcotics law (No 14 of 1995). It appears that the court deleted the words "manufactured" and "produced" from the charges prior to conviction on the grounds that the methaqualone, as opposed to the Mandrax, was not made or produced by the defendants. It was satisfied that the "other acts charged to the accused" had been proved.

53. On all this material we find it quite impossible to hold that Mr Lodhi was acquitted of the offence for which his extradition is now sought. The UAE appears to have no laws relating to duplicity of charges. Accordingly when the prosecution charged nine defendants at the Umm Al Qwain end of the conspiracy with nearly all the possible ingredients of an offence against Article 49(3) of the narcotics law (any one of which would have sufficed for conviction, if done with the intent of trading and promotion), the court was content to delete the words "manufactures" and "produces" because the operation of the Mandrax factories, which was at the heart of the conspiracy, was not concerned with the manufacture and production of Methaqualone. We were unable to conclude from this fact that if Mr Lodhi, whose IGT warehouse was said to be full of chemical ingredients of Methaqualone (see the Dubai judgment, pp 25 and 31), had been charged on his own with an offence concerned with the manufacture and production of Methaqualone he would necessarily have been acquitted.

Part 9 Section 6 issues: (iii) The status of Mr Lodhi and autrefois convict

54. The next issue we have to decide is whether Mr Lodhi should be treated as a person convicted of an extradition crime or, alternatively, as a person accused of an offence, and whether the plea of autrefois convict is open to him. The importance of the first distinction is that sections 6(2) and 6(3) of the 1989 Act identify different matters which must appear to "an appropriate authority" if he is to be returned to a foreign state (or committed or kept in custody for the purposes of his return) in each case. English case law on this topic goes back a very long way.

55. In re Coppin (1866) LR 2 Ch 47 an application for habeas corpus was made in relation to a defendant who had been committed to prison by a magistrate, pending an extradition decision, on the ultimate authority of a French warrant for the apprehension of an accused person. He had been convicted in his absence in France for the offence for which he had been charged, and it was argued on his behalf that he could not in those circumstances be properly regarded as an accused person.

56. The magistrate, however, had received expert evidence to the effect that under French law if a man convicted in his absence was arrested or surrendered himself, the judgment par contumace (as it was called) was set aside, and the position was exactly the same as if no proceedings had been taken against him. He would then undergo his trial for the offence for which he had been convicted in his absence.

57. In these circumstances Lord Chelmsford LC concluded at pp 54-55 that it did not appear that such a trial differed at all from that of a party who was put on his trial without any previous condemnation. He added:

"But, if, in order that no part of the argument for the prisoner may be disregarded, I should assume that it has been established that the judgment par contumace does work some prejudice to the party upon the trial, either by reducing the amount of necessary proof, or by changing its character, or by making him liable to costs, how could that possibly take him out of the category of accused persons? He has ceased to be a person condemned, because his condemnation is annulled upon his appearance, and he is to take his trial for offences with which he stands charged. What better, I ought rather to say what other, description of him could be given than that of a person accused?"

58. In R v Governor of Brixton Prison ex p Caborn-Waterfield [1960] QB 498 this court was concerned with a different part of French procedural law. Since 1876 there had been an express provision of the extradition treaty between England and France to the effect that persons convicted by judgment in default or arrêt de contumace should in the matter of extradition be considered as persons accused and, as such, be surrendered. Mr Caborn-Waterfield, however, had been convicted and sentenced by a "judgment itératif défaut", because he had given a notice which had had the effect of having the original default judgment set aside and the case retried in his presence. At the rehearing, however, he had again failed to appear. Under French law this second default judgment became final and conclusive unless notice of appeal was given within 10 days, and when such a defendant was subsequently arrested or surrendered he would go straight to prison to serve his sentence without any further proceedings.

59. Lord Parker CJ held at p 510 that such a judgment was radically different in character from a conviction "par contumace":

"A fugitive criminal convicted par contumace would upon his surrender be tried, whereas a fugitive criminal subject to a final conviction `itératif défaut' would, on his surrender, be sent straight to prison without any further trial."

60. In R v Governor of Pentonville ex p Zezza [1983] AC 46 the House of Lords approved the decision of this court in Caborn-Waterfield and applied the Lord Chancellor's decision in Coppin "which has stood unchallenged for over a century". Lord Roskill described at p 55D-E how an English court must inform itself by expert evidence of the nature of a conviction in the absence of the accused:

"That evidence will show whether or not the conviction upon which the demand is founded bears the characteristics of a conviction or sentence `in contumacy', so that the whole matter can be re-opened in the event of subsequent surrender and appearance. If it can, then the person concerned must not be treated as a convicted person but as an accused person."

61. Mr Fitzgerald has shown us a number of unreported cases in which this court has applied these principles to particular facts. In Peci (COT 5th November 1999), for instance, this court was satisfied that the applicant would obtain a completely fresh trial in Switzerland of the issue of guilt or innocence, and that it was entitled, in the absence of any evidence of bad faith, to accept the unequivocal assurance of the government of Switzerland to this effect.

62. Needless to say, the obiter dictum of Lord Chelmsford LC in Coppin would be conclusive of the matter if it is good law. If the choice is between describing somebody as an "accused person" or as a "convicted person", then if a court is satisfied that the original conviction (in that person's absence) is completely set aside, the form of the process which will be adopted before he can be convicted again may be relevant to other issues that may arise on an extradition application, but it cannot affect the way he should be classified.

63. We do not find any assistance on this point from the dicta of Viscount Dilhorne in Athanassiades v Government of Greece [1971] AC 282, 295 or of Evans LJ in In re Sarig (COT 26th March 1993) at p 25 of the transcript, to which Mr Fitzgerald referred us. Whatever language may be used by judges when applying well-known principles to the facts of particular cases, the statutory scheme contained in section 6 of the 1989 Act is a clear one. If the defendant is alleged to be unlawfully at large after conviction of an extradition crime, he must not be returned if it appears not only that his conviction was obtained in his absence but also that it would not be in the interests of justice to return him on the grounds of that conviction (s 6(2)). If, on the other hand, he is a person accused of an offence, the court is enjoined, in effect, to concern itself in this context only with the pleas in bar of "autrefois acquit" or "autrefois convict" (s 6(3)).

64. Unlike section 6(3), which was derived from section 4(2) of the Fugitive Offenders Act 1967, section 6(2) was new law when it was first included as section 3(2) in the Criminal Justice Act 1988. We have been shown paragraphs 4.15 to 4.27 of the Report of the Interdepartmental Working Party on Extradition which preceded the introduction of this new statutory provision. Because there is some ambiguity, in the light of the older cases, as to whether Mr Lodhi should be treated as a person convicted or a person accused, it is legitimate to have recourse to this report in order to identify the mischief which Parliament was concerned to remedy (Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AC [1975] AC 591, per Lord Reid at p 614B-F).

65. It is clear from paragraphs 4.15 to 4.18 that the writers of this report were concerned that English law did not give sufficient protection to persons convicted in their absence. Although by our caselaw (Re Coppin) and by our statute law (Extradition Act 1870 s 26 and Fugitive Offenders Act 1967 s 19(2)) a person convicted in absentia was treated in certain circumstances (and in cases covered by the 1967 Act in all circumstances) as a person accused of an offence, and although our courts had to be satisfied that there was a prima facie case against an accused person such as to justify his committal, English law precluded any inquiry into the procedure which would be adopted by the requesting state once the person had been returned.

66. The Working Party referred in this context to Article 3 of the Second Additional Protocol of the European Convention on Extradition, which provided that:

"When a Contracting Party request from another Contracting Party the extradition of a person for the purpose of carrying out a sentence or detention order imposed by a decision rendered against him in absentia, the requested party may refuse to extradite for this purpose if, in its opinion, the proceedings leading to the judgment did not satisfy the minimum rights of defence recognised as due to everyone charged with a criminal offence. However, extradition shall be granted if the requesting party gives an assurance considered sufficient to guarantee to the person claimed the right to a retrial which safeguards the rights of defence. This decision will authorise the requesting party either to enforce the judgment in question if the convicted person does not make an opposition or, if he does, to take proceedings against the person extradited."

67. It is not necessary to write into this judgment the text of paragraphs 4.20 to 4.26 of the Working Party's report in which it sought to tackle this problem, particularly as the solution it recommended in paragraph 4.27 was not in the event adopted by Parliament. It is clear that its primary concern was to prevent a situation arising in which the English court for its part might treat a person as an "accused" person, and might be satisfied, where this was required, that a prima facie case against him existed, whereas on his return that person might be required to serve a prison sentence immediately without anything resembling a fair hearing.

68. We have to interpret the 1989 Act as it stands, without the assistance we might have been given if the Working Party's recommendations had been implemented. It is noticeable that there is no new provision equivalent to section 26 of the 1870 Act or section 19(2) of the 1967 Act, although section 35(2) preserves the old statutory "definition" in relation to persons convicted in their absence in a designated Commonwealth country or a colony, and paragraph 20 of Schedule 1 preserves the old provisions relating to the effect of a conviction for contumacy in relation to the extradition arrangements covered by section 1(3) of the Act. These provisions apart, we are given no assistance by Parliament when we have to decide whether Mr Lodhi is to be treated as "a person convicted" or "a person accused". It may be that Parliament considered that we needed no assistance because the requisite state must make it clear whether it is requesting the return of a person accused of an offence, or of a person convicted of an offence (1989 Act, ss 1(1) and 7(2)). If the wrong request is made, the request will be invalid, and the Secretary of State will not give authority to proceed. If authority to proceed is given, the court of committal will deal with the matter strictly in accordance with the request, under section 6(2) or 6(3), as the case may be, and then if there is a risk that a person accused may not receive a fair trial if returned, it will be for the Secretary of State to consider, in the exercise of his discretion under section 12, whether he should be returned.

69. It is clear that the UAE treated Mr Lodhi as "a person accused" when they made their Rogatory Request. They submitted the evidence on which they sought his committal, and said in terms that by their law, if he presented himself or was arrested, the previous judgment would be void. It would therefore be impossible, as a matter of UAE law, for him to be sent to prison as a sentenced criminal on his return to the UAE. It is also clear that in giving authority to proceed on both occasions the Secretary of State treated the extradition request as having been made in relation to an accused person.

70. In these circumstances, since his conviction will automatically fall away on his return to the UAE, it seems to us that we should adopt the approach of Lord Chelmsford LC in Re Coppin, for the reasons he gave.

71. In a different case there might be legitimate grounds for concern that Parliament has not included any proviso in section 6(3) to the effect that a person should not be returned as an accused person in these circumstances if he cannot be guaranteed a complete rehearing: there is nothing in that sub-section comparable to the new provision in section 6(2)(b). However, as we have said, this is a matter which the Secretary of State should assess when he decides whether or not to order the return of the person in question. On the present occasion, if we are entitled to rely on the assurance of the Attorney-General of Dubai, there need not in any event, in our judgment, be ground for concern on that account. We will therefore turn to consider this assurance and the circumstances in which it was given.

72. In paragraph 4.1 of the Rogatory Request, the Attorney-General of Dubai recited the facts of Mr Lodhi's conviction and sentence. He then stated:

"However Dubai Public Prosecution states that as per Federal Criminal Procedure Code 35/92, Article 203 if Lodhi either returns to the UAE voluntarily or is sent back, he would automatically get a retrial. Article 203 states that in a case where judicial sentence has been issued in absence of the accused, in a felony, this judgment will be void if the same convict presents himself or is arrested. Assurances will be given by the Attorney-General that Lodhi would get a retrial in his presence and with full legal representation of his own choice."

The Attorney-General gave such an assurance in a later statement dated 7th May 2000.

73. The district judge had to resolve a dispute between the parties as to the meaning and effect of Article 203. It is no longer in issue that if Mr Lodhi were returned to the UAE, Article 203 would apply, and his conviction in his absence would fall away. The UAE government maintained that the correct English translation of the article provides that "the case shall be brought before the court for rehearing". Mr Edge, on the other hand, maintained that it provided that "re-examination/reconsideration of the law suit/case before the court shall be made". In these circumstances the district judge set about determining whether Mr Lodhi had a right to a guaranteed full retrial, including the right to cross-examine prosecution witnesses.

74. On Mr Lodhi's side written and oral evidence was adduced from Mr Edge, who is a barrister and lecturer in law at London University specialising in UAE law. Mr Edge referred in his written evidence to an extract from a commentary written by Professor Jehad, who is a professor of criminal law at the Dubai Police college. He also tendered a written opinion by Dr Mustafa Kira, who was Head of the Dubai Court of Cassation between 1988 to 1999. For the UAE government written and oral evidence was adduced from Mr Richard Price, a solicitor who worked at Clifford Chance's UAE offices between 1982 and 1999. The district judge also had the benefit of what he called the Dubai Attorney-General's interpretation of the law.

75. The district judge decided this issue in his written ruling dated 31st July 2000. He said that both Mr Price and Mr Edge had considerable legal expertise and had given honest evidence. Neither of them had had practical experience of the operation of Article 203, however, and their academic interpretations of the article differed.

76. Mr Edge maintained that the operation of that article resulted in a review of the prosecution's evidence and not a retrial. Although the defence would have the opportunity to call witnesses, they could not insist on the prosecution calling witnesses for examination. Mr Edge said that the Arabic words at the beginning of Article 203 literally meant "To look at again", that is, to review the evidence rather than conduct a retrial. The same language was used in an article concerned with appeals, where there was a review rather than a retrial. It could be distinguished from the wording in an article relating to nullity in which full retrials were automatic.

77. Mr Edge's view was shared by Dr Jehad and also by Dr Kira, whose written opinion on the matter was before the district judge. They maintained that although the earlier judgment was set aside, the investigations, which included the prosecution's evidence, would remain, and the prosecution's case would be taken as read. The defendant would not have the right to challenge any witnesses, although he would have the right and opportunity to present his own witnesses, and the court would have a discretion to allow the defence to cross-examine the prosecution's witnesses. Mr Edge said that the discretion would be exercised sparingly and in a limited way.

78. In his opinion Dr Kira pointed out that the provisions of Article 203 were very similar to the provisions of Article 395 of the Criminal Procedure Code in Egypt. He referred to earlier decisions of the Egyptian Court of Cassation on this topic. In one of them it was said:

"... the most important consequence of the accused presence or arrest is the reconsideration of the litigation before the Court which has issued the same judgment. But the statements submitted by the public prosecution shall not fail/abate."

79. A 1988 text book on the Criminal Procedure Code appears to have summarised the effect of two other judgments of the same Egyptian court in these terms:

"Reconsideration of the judgment and litigation shall be made and considered before the same Court which has issued the judgment in absentia but provided such litigation shall not be stipulated to be considered before the same department (that is before the same judges). Such shall mean the litigation procedures shall not fail/abate as per the law hence the Court will rely upon the investigations already carried out and used in the judgment in absentia."

80. Mr Price, for his part, maintained that once the earlier judgment was extinguished the case must be retried de novo. He believed that in addition to being able to present his own case and adduce his own evidence and witnesses, the defendant in the retrial had the right to discredit the evidence and witnesses for the prosecution, and to insist that they be recalled for cross-examination. In advancing this view Mr Price relied on what he described as an internally consistent and logical interpretation based on the ordering of the case to be reheard.

81. The district judge said that if he was satisfied that Article 203 did require a retrial, he would have been willing to accept Mr Price's evidence. He was persuaded, however, on the basis of Mr Edge's evidence, that in fact Article 203 provided for a review rather than a retrial. He therefore concluded that this article did not provide the defendant with the right to cross-examine the prosecution witnesses.

82. The matter did not in the event end there, because shortly before the adjourned hearing on 19th-20th July the Dubai Public Prosecution Chief wrote a letter on 16th July to the Judicial Co-operation Unit of the Home Office which contained the following assurances:

"The Attorney-General is undertaking to give Mr Lodhi a complete new trial in which the Public Prosecution will rely on its old evidence submitted in the old hearing, but the Accused, Mr Lodhi or his defence will be entitled to submit any new evidence and witnesses and re-cross-examine the old evidence and witnesses.

The interpretation of Article 203 of the UAE Criminal Procedure Code the Federal Law No 35/1992 in relation to a retrial is that the prosecution will be allowed to rely on the evidence presented at the previous trial in which Mr Lodhi was convicted in absentia. However the defence will be allowed to re-examine any part of that evidence and have the evidence re-heard if he requires. This will include the re-calling of witnesses and the cross-examination of them, and the re-presentation of exhibits and the questioning of them etc. The defence will also be allowed to present their own witnesses in Lodhi's defence. These witnesses will of course be open to cross-examination by the prosecution.

The Prosecutor will rely upon the record of the evidence given at the previous trial. However, ... the defence will be given access to the evidence and will be allowed to re-examine it if he so wish. This includes the calling of the Prosecution witnesses.

The Attorney-General is undertaking subject to UAE laws (Criminal Procedure Code the Federal Law No 35/1992), that Lodhi will receive a complete new trial before Dubai Criminal Courts. Therefore Lodhi can present his own witnesses and evidence."

83. The district judge considered that these undertakings were not inconsistent with UAE law, because there was nothing in that law to prevent the court which reviewed the conviction from permitting the calling of prosecution witnesses or from allowing the defendant the right to cross-examine them. He was therefore satisfied that they provided clear assurance that the requirement for a full retrial with the right to cross-examine prosecution witnesses would be met.

84. Since the hearing before the district judge Mr Lodhi's advisers have obtained a written opinion from Mr Sabah Mahmoud, who practised law in the UAE between 1977 and 1991. He has confirmed Mr Edge's interpretation of Article 203.

85. Mr Greenwood sought to persuade us to overturn the district judge's decision on the effect of Article 203. Although this was a ruling on foreign law, it was in English eyes a finding of fact, and a superior court is always likely to be reluctant to overrule the finding of a court on issues of fact when the lower court has had the opportunity of receiving oral evidence from witnesses. While it is of course correct that appropriate attention should be paid to the opinion of the Attorney-General, with his experience of the way in which Dubai courts take decisions in practice, it would be difficult for an English judge to disregard the opinion of Dr Kira, who had long experience of the Dubai Court of Cassation, particularly as his opinion, founded on the language of Article 203, was bolstered by the Egyptian case-law to which he drew attention.

86. The way in which a higher court should consider an issue of this kind has now been authoritatively set out by Evans LJ, giving the judgment of the Court of Appeal in Macmillan Inc v Bishopsgate Investment Trust plc (No 4) The Times 7th December 1998, CAT 4th November 1998 (see Cross & Tapper on Evidence (Ninth Edition) p 670). Evans LJ said at paras 12-13:

"So we come to consider what the Court's approach should be when the trial judge has heard expert evidence as to foreign law and made findings which are challenged on appeal. What difference does it make that these are findings of fact but of a `peculiar kind' because they are concerned with issues of foreign law?

In our judgment, the answer varies according to the nature of the issue which arises in the particular case and the kind of decision which the trial judge and now the Court of Appeal is called upon to make. Sometimes the foreign law, apart from being in a foreign language, may involve principles and concepts which are unfamiliar to an English lawyer. The English judge's training and experience in English law, therefore, can only make a limited contribution to his decision on the issue of foreign law. But the foreign law may be written in the English language; and its concepts may not be so different from English law. The English judge's knowledge of the common law and of the rules of statutory construction cannot be left out of account. He is entitled and indeed bound to bring that part of his qualifications to bear on the issue which he has to decide, notwithstanding that it is an issue of foreign law. There is a legal input from him, in addition to the judicial task of assessing the weight of the evidence given. The same applies, in our judgment, in the Court of Appeal. When and to the extent that the issue calls for the exercise of legal judgment, by reference to principles and legal concepts which are familiar to an English lawyer, then the Court is as well placed as the trial judge to form its own independent view."

87. Even without this assistance we would have concluded that we should not interfere with the findings of the district judge. If we are entitled, for what it is worth, to add our own knowledge of the principles and legal concepts to which Mr Edge referred in his opinion and which Dr Kira deployed by reference to the cases which he cited, we would be reinforced in our view that the findings by the district judge on the effect of Article 203 should not be disturbed.

88. Like him, however, we see no reason why we should not rely on the Attorney-General's assurance in the letter of 16th July. If a prosecutor tells a court in Dubai that he intends to recall for cross-examination all those prosecution witnesses whom Mr Lodhi's lawyers wish to cross-examine, and that an assurance has been given to the United Kingdom authorities that this procedure will take place, we would regard it as inconceivable that judges in Dubai would not allow this to happen. This, in our judgment, is a quite different situation from that considered by the House of Lords in Armah v Government of Ghana [1968] AC 192 where what was being undertaken by the requesting government did not comply with the ordinary law of its country. Since the conviction in absentia will automatically fall away, it is clear that the plea of autrefois convict will not be available. See, generally, R v Thomas [1985] QB 604.

Part 10 Section 6 issues: (iv) Prejudice on the grounds of nationality

89. Mr Fitzgerald invoked section 6(1)(d) of the 1989 Act in support of his contention that there was a real risk that if Mr Lodhi was returned he would suffer prejudice at his trial or be punished, detained, or restricted in his personal liberty by reason of his nationality. 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.

90. We have read with care the documentary material furnished to us by each party on these issues. These include evidence from Mr Lodhi's brother Hamoud, from his wife, Dr Tabnassum Shaheen, and from the Sales and Marketing Manager for IGT, Teghrid Ibrahiem Fadhiel; the contents of general reports on the UAE prepared by Amnesty International and the US State Department; the expert evidence of Mr Edge, Mr Mahmoud and Mr Stephen Jakobi (the director of the Fair Trials Abroad Trust); and evidence about the immunity afforded by the authorities in Umm Al Qwain to Sheikh Abdulla. On the other hand, we have read the tributes paid to the Dubai police by the accredited representatives of Argentina, India (twice), Russia and Pakistan (twice), and by a number of individual non-UAE nationals; and material illustrative of the policies and practices of the Human Rights Department of the Dubai Police since it was established in September 1995. We were also shown a letter signed by Mr Al Zarouni, the Dubai public prosecution chief, in which he joined issue with a number of the allegations made by Mr Lodhi's wife and brother. The respondents also furnished us with a number of documents which showed that although certain defendants had been sentenced to death for drugs offences contrary to Article 48 of the Narcotics Law, and their sentences were usually upheld by the higher courts, the death penalty was in fact not carried out in any of these cases. They related to two Iranians, a UAE national, a Canadian (sentence reduced on appeal) and a Lebanese national (sentence reduced on appeal).

91. Mr Fitzgerald also sought to rely in this context on the fact that although the UAE had ratified the Convention on the Elimination of All Forms of Racial Discrimination, it had not adhered to a number of other well known international instruments guaranteeing individual rights, and in particular the International Covenant on Civil and Political Rights.

92. We remind ourselves that we are not an international court. Furthermore, there are no means open to us by which we could resolve disputed issues relating to UAE's conduct in relation to the matters of which Mr Fitzgerald makes complaint, even if we had jurisdiction to do so. Some of them, indeed, belong properly to the world in which the Secretary of State may be invited to exercise his political judgment in determining whether to return Mr Lodhi to the UAE if a prima facie case is established against him, and if all the statutory grounds of objection, with which we are concerned in this judgment, have fallen away. Our task is the much more narrow one of deciding whether Mr Fitzgerald's complaint under section 6(1)(d) is made out.

93. We see no purpose in extending an already overlong judgment by reciting in detail the effect of the evidence before us. So far as complaints of a general nature are concerned, it appears that whatever the position in other neighbouring emirates (and Mr Jakobi cites an example from Qatar, which is not even one of the seven emirates within the UAE) it would be quite wrong on the material we have been shown to conclude that there is a reasonable chance that Mr Lodhi, as a foreign national, would be prejudiced on his return by reason of his nationality. We have been shown translations of substantial portions of the Dubai criminal procedural code and we have read with care the judgment of the Dubai judges in this case. As we have said, almost all the judges in Dubai are non-UAE nationals. We can detect no bias against non-UAE nationals in that judgment. Sheikh Abdulla, the only UAE defendant, was convicted in his absence and sentenced to life imprisonment. Eight of the defendants were acquitted, and Mr Lodhi's wife had her jewellery and ornaments restored to her by the court, notwithstanding her husband's conviction.

94. As for the specific complaints, there can be no doubt that if true they reveal matters of concern. They contain, for instance, fairly broadbrush allegations about the treatment of the assets and personnel of IGT, which had only one Arabic employee, following the discovery of incriminating material in one of its warehouses; allegations of degrading treatment and torture made by Mr Lodhi's brother Hamoud, who has been sentenced to life imprisonment; and allegations of discriminatory treatment and harassment contained in his wife's statement. It is pertinent to note, however, that although Dr Shaheen maintains that the chemicals found in IGT's warehouse did not belong to her husband, and that the Sheikh was renting the warehouse for use as a temporary store, the judgment of the Dubai court showed that co-defendants were naming Mr Lodhi to the police long before there was any opportunity for forced confessions to be obtained in the manner of which Dr Shaheen makes complaint in her statement.

95. Although complaint is made that the proceedings in the Dubai court in 1999 were conducted almost entirely in Arabic (and this is only refuted to the extent that it is said that an interpreter was provided when the defendants were being questioned), this court is in our judgment entitled to rely on the assurance of Mr Al-Zarouni that Mr Lodhi will be entitled to an interpreter at his trial. If there was any question of his being returned to Dubai, it would be essential, for the avoidance of any misunderstanding, for it to be clearly understood that this assurance must extend to the whole of the trial proceedings and not merely to the period when he was being questioned (when, of course, the non-Urdu speaking members of the court would in any event have to decide what he was saying). See, generally, for the requirement of an interpreter, Kunnath v The State [1993] 1 WLR 1315, 1319-20.

96. Even if there were grounds for believing that Mr Lodhi might be mistreated if he was returned to the UAE, it would be quite impossible for us to hold that any such mistreatment had anything to do with his status as a non-UAE national.

97. So far as Sheikh Abdulla is concerned, it is clearly a matter of concern to the authorities in Dubai that the authorities in Umm Al Qwain are not willing to allow him to be arrested and brought before a court in Dubai. We cannot, however, regard the immunity being afforded to the ruler's son in one of the other emirates as a reason for concluding that Mr Lodhi would receive discriminatory treatment on the grounds of his nationality.

98. We therefore consider that the evidence adduced on Mr Lodhi's behalf affords no ground for his not being returned on grounds founded on section 6(1)(d) of the 1989 Act.

Part 11 The effect of the European Convention on Human Rights on extradition

99. Before leaving this topic it is perhaps convenient to mention at this point the effect of the European Convention of Human Rights on the act of extradition itself.

100. In Soering v United Kingdom 11 EHRR 439 the European Court of Human Rights held (at para 91) that a state violated Article 3 of the Convention if it extradited a person to another state in circumstances in which substantial grounds existed for believing that there was a real risk that the person concerned would be subjected to torture or inhuman or degrading treatment or punishment. The court recognised the conflicting policy pressures when it said a little earlier:

"... [I]nherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interests of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person but also tend to undermine the foundations of extradition."

101. In this judgment the court also explained (at para 86) that:

"... the Convention does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States. Article 1 cannot be read as justifying a general principle to the effect that, notwithstanding its extradition obligations, a Contracting State may not surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention."

102. Notwithstanding this policy background, however, the court held that the fundamental importance of the prohibition of torture and the absolute and universal character of that prohibition meant that extradition to a state where the individual would be treated contrary to the standards prescribed by Article 3 was prohibited.

103. The court was extremely cautious, for the same policy reasons, about the possible application of Article 6 to the act of extradition. It said (at para 113):

"The court does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country. (Emphasis added)."

104. The court reverted to this theme in Drozd and Janousek v France and Spain, 14 EHRR 743, in which it repeated (at para 110) in terms that the Convention did not require the contracting parties to impose its standards on third state or territories. For this reason

"France was not obliged to verify whether the proceedings which resulted in the conviction were compatible with all the requirements of Article 6 of the Convention. To require such a review of the manner in which a court not bound by the Convention had applied the principles enshrined in Article 6 would also thwart the current trend towards strengthening international co-operation in the administration of justice, a trend which is in principle in the interests of the persons concerned. The Contracting States are, however, obliged to refuse their co-operation if it emerges that the conviction is the result of a flagrant denial of justice."

105. Because there is not the slightest danger, in our judgment, of a flagrant denial of a fair trial in the present case, even if there are features of the judicial system in the UAE which would not be regarded as Convention-compliant in a country bound by the Convention, we do not consider that recourse to ECHR jurisprudence takes the matter any further.

Part 12 Section 11 issue: bad faith

106. Mr Fitzgerald then argued that his client should be discharged under section 11(3)(c) of the 1989 Act on the grounds that UAE's request was not made in good faith in the interests of justice. He relied in this context on an unreported dictum of Woolf LJ in Re Osman (COT 25th February 1992):

"In my judgment the term `good faith' has to be given a reasonably generous interpretation so that if the proceedings were brought for a collateral purpose, or with an improper motive and not for the purpose of achieving the proper administration of justice, they would not be regarded as complying with this statutory requirement. Likewise the accusations would not be made in good faith and in the interests of justice if the prosecution deliberately manipulates or misuses the process of the court to deprive the defendant of a protection to which he is entitled by law. "

107. We did not require Mr Greenwood to respond to this submission. One only has to study the judgment of the Dubai court with care to see that rightly or wrongly a number of disparate strands of evidence pointing to Mr Lodhi's involvement in this major conspiracy (whether or not they were admissible against him in a court) were available to the police at the time of their raids in 1997. We can see no indication that the prosecution authorities in Dubai do not genuinely believe that Mr Lodhi is guilty of the serious offences with which he is charged or that they are not acting in good faith when they request his return. Mr Fitzgerald relies on some rather heterogeneous material, dating for the most part to a period long after the police investigations started, in support of this very serious charge against the UAE government. Whether or not there is justified ground for complaint in Dubai about any of these matters, we do not consider they are sufficient to substantiate the contention that his return is not being requested in good faith.

Part 13 Section 9 issues: (i) Non-Disclosure

108. Mr Fitzgerald sought to construct, on foundations said to have been provided by this court in its judgment in ex p Kashamu, an argument to the effect that the committal of Mr Lodhi was unlawful because the Government of the UAE had been guilty of material non-disclosure. These submissions were based on the growing jurisprudence in this jurisdiction which relates to the nature and extent of the prosecution's duty to disclose unused material in the context of a criminal trial. To put the matter quite shortly, complaint is made that Al Shaar did not say anything in the criminal proceedings in Dubai about his having seen Mr Lodhi in a Lexus car at the time of the police raid on the desert factory. The prosecution is therefore criticised for seeking to rely on a statement by him to this effect, taken in April 2000, without disclosing his evidence in the criminal proceedings which was said to be fundamentally inconsistent with that statement. It is said that the existence of the earlier evidence raises doubts about the bona fides of the UAE, and that it also leaves open the possibility that other unused material exists which is helpful to the defence.

109. In our judgment, unless the enactment of the Human Rights Act 1998 has altered the position, there is nothing at all in this point. In R v Governor of Pentonville Prison ex p Lee [1993] 1 WLR 1294, a case decided shortly after the judgment of the Criminal Division of the Court of Appeal in R v Ward [1993] 1 WLR 619, this court robustly dismissed a challenge to a decision by a stipendiary magistrate to refuse an adjournment of committal proceedings in an extradition case for the purpose of enabling inquiries to be made and documents obtained in respect of statements made by alleged conspirators not relied upon by the requesting state. Leading counsel for the applicant, Mr Mansfield QC, was unable to draw any authority at all to the attention of the court in support of his submissions (see Ognall J at p 1297F), and the court went out of its way to explain the difference between extradition proceedings and the domestic trial process of our criminal courts.

110. Ognall J said at p 1298D-1299B:

"It is important to remember that the conduct of extradition proceedings is entirely the creature of statute. This has a number of consequences.

(1) The requesting state must be the sole arbiter of such material as it chooses to place before the court in support of its application and in purported compliance with the relevant domestic extradition legislation. It alone will decide what material in support of its allegations it places before the Secretary of State and the court under sections 7 and 9 of the Act of 1989. If it furnishes inadequate evidence, then it takes the risk that its request will be refused; in which event, it will be up to the requesting state to determine whether it starts fresh proceedings or not. Neither principles of comity nor the express terms of the Act afford the court in this country any right - still less power - to request further material from the requesting state as a condition precedent to committal. For that reason, the submission that the magistrate should, at the very least, have requested of the Hong Kong Government a sight of any unused material is of no substance, and we reject it.

(2) Committal under the Extradition Act is in no sense part of this court's trial process. Section 9(2) of the Act reads:

`For the purposes of proceedings under this section a court of committal in England and Wales shall have the like jurisdiction and powers, as nearly as may be, including power to remand in custody or on bail, as a magistrates' court acting as examining justices.'

No authority has been cited to us which affords a defendant charged with offences in this country right of access to unused material at the committal stage. It has generally been understood as a duty on the Crown to furnish such material pre-trial but whether or not that is correct, it is clear from the words of section 9(2) that a committal under the Extradition Act is only akin to a domestic committal for trial `as nearly as may be'. Those words must be taken to mean as nearly as may be consistent with the terms and purpose of the extradition legislation. Proper regard must also be had to the limited function of the magistrate in extradition proceedings. That function is defined in section 9(8)(a) of the Act. That requires the magistrate to be satisfied `that the evidence would be sufficient to warrant his trial if the extradition crime had taken place within the jurisdiction of the court'. In our judgment, and for reasons which will appear hereafter, those words must be taken to require the magistrate to examine the evidence presently before him, and not to embark upon enquiries as to the nature of any other suggested evidence which might be before him in other circumstances."

111. Although we would of course have power to depart from that decision if we considered that it was clearly wrong (see R v Greater Manchester Coroner ex p Tal [1985] 1 QB 67, 81), it appears to us that it is clearly right. It is certainly true, as we have mentioned in paragraph 18 above that in ex p Kashamu, following the enactment of the Human Rights Act, Pill LJ was critical of a later dictum of Ognall J at p 1300 in these terms:

"Our courts have consistently resisted attempts to impart the requirements of domestic criminal procedure into extradition proceedings. Provided that there has been a compliance with the terms of the Extradition Act 1989, fairness is not a criteria relevant to the function of the committing court."

112. This, in our judgment, however, was an accurate statement of the law in 1993. The live question today is what, if any, difference the Human Rights Act has made. Untargeted invocations by Mr Fitzgerald of concepts of fairness will not in our judgment provide a satisfactory answer to that question.

113. In Kirkwood v United Kingdom 6 EHRR 373 the European Commission of Human Rights held that ECHR Article 6 does not apply to extradition proceedings. It had been argued on behalf of the applicant that the denial to him of any opportunity to cross-examine the prosecution witness against him at the committal stage of the extradition proceedings constituted a violation of his rights under Article 6(3)(d) of the Convention. The Commission concluded, however, at p 386:

"... that these proceedings did not in themselves form part of the determination of the applicant's guilt or innocence, which will be the subject of separate proceedings in the United States which may be expected to confirm to standards of fairness equivalent to the requirements of Art. 6, including the presumption of innocence, notwithstanding the committal proceedings."

114. This appears to be dispositive of any suggestion that the "fair trial" requirements of Article 6 require any change to pre-existing caselaw in this country relating to committal proceedings in extradition cases. The attention of the committing court, as Ognall J suggested, is focused on the contents of the committal bundle. That this focus may lead to surprising results on some occasions is illustrated by the decision of the House of Lords in R v Governor of Pentonville Prison ex p Alves [1993] AC 284, where an alleged accomplice repudiated in the magistrates' court a statement he had made to a Swedish court implicating the applicant. The magistrate decided that notwithstanding this repudiation he was entitled to rely on the witness's evidence in Sweden as sufficient to justify the committal, and the House of Lords held that he was entitled to do so.

115. It follows that the principles set out by Ognall J in the passage from his judgment in ex p Lee are still good law, and we would therefore reject Mr Fitzgerald's complaints based on alleged non-disclosure.

Part 14 Section 9 issues: (ii) A prima facie case

116. We now turn to consider the evidence on which the district judge committed Mr Lodhi on six of the 16 charges which were before him.

117. It is not in dispute that Mr Lodhi, who is a citizen of Pakistan, was at all material times the owner of IGT, which owned business premises in Sharjah. As we have already said, on 21st June 1997 representatives of the Dubai police raided a factory in the desert in Umm Al Qwain. They subsequently searched both the IGT factory and Mr Lodhi's home. Much of the evidence on which Mr Lodhi's committal was sought was founded on evidence relating to these three police raids. The evidence as a whole can be divided into four main categories:

(1) Lay evidence about Mr Lodhi's acts in ordering dies at the end of 1996;

(2) Lay evidence from two of the alleged co-conspirators, Desai and Al Shaar, about Mr Lodhi's alleged involvement in the plot;

(3) Police evidence about what was found during the raids;

(4) Scientific and photographic evidence prepared by representatives of the Criminal Laboratories at Dubai and Sharjah.

118. The first of these categories of evidence consists of the statements of three lay witnesses. Mr Siddiq, the manager of a foundry in Pakistan, testified that in October or November 1996 Mr Lodhi came to his foundry and showed him samples of dies. One of them looked like the trademark of Mercedes and another resembled a swastika. Mr Siddiq had known Mr Lodhi for four or five years. Mr Lodhi asked him if he would manufacture 30 dies of the same shape, but Mr Siddiq told him that suitable machines were not available in his shop. Instead, he would send the samples to a shop in Dubai which would do the work. This offer was accepted. In due course the Dubai shop sent him samples for Mr Lodhi to look at. Mr Lodhi paid an agreed price for the dies, which were collected by Mr Hamoud Lodhi.

119. This evidence was confirmed by Mr Ilahi, a sales representative at Mr Siddiq's foundry. He said that Mr Siddiq asked him to liaise with a man named Patnih, who worked at a company in Dubai. He was given two dies by Mr Siddiq, one with the mark of an "M" and the other with a (+) mark. These marks had also been drawn on a piece of paper which Mr Siddiq gave him, marked "Mercedes" and "Swastika". Mr Ilahi described the part he played in arranging this order with Mr Patnih, and how he personally brought the 30 dies to Mr Siddiq. He also described how he saw Mr Lodhi at Mr Siddiq's shop 10-15 days later. In a second affidavit he said he threw the piece of paper away in a rubbish bin.

120. Finally, Mr Patnih confirmed his role in this transaction.

121. The only objection Mr Fitzgerald has made to the admission of this evidence was that the three witnesses began their affidavits by saying "As I testified at Dubai Public Prosecution". Complaint was made that by using this form of words the witnesses were not averring that what they were saying was true, but merely that they had said it on a previous occasion.

122. The district judge said he was satisfied that the oath these witnesses took - and the same complaint was made in relation to other evidence - would have applied to each of the matters they mentioned in their affidavits, and that in so far as they were giving direct evidence of the matters to which they testified their evidence was properly admissible. We agree. In the circumstances of this case, the prefatory words were mere surplusage, and these three witnesses should be taken to be testifying to the truth of the matters set out in their affidavits.

123. The evidence of the two alleged co-conspirators comes next. We need not trouble about Desai, since the district judge said that he had formed the view that certain parts of his evidence were untruthful. Although he regarded his evidence as admissible he declined to attach any weight to it when considering whether there was a prima facie case against Mr Lodhi.

124. He was, however, willing to attach weight for this purpose to the evidence of Al Shaar. Al Shaar's first affidavit was sworn on 13th March 2000. According to Al Shaar, Mandrax tablets were first produced by the conspirators in the pumping room of the Dreamland Aquatic Park in Umm Al Qwain, and later in the factory in the desert in that emirate. Another of the conspirators imported the Methaqualone, while Mr Lodhi imported the rest of the chemicals needed for manufacturing Mandrax. He used his IGT premises to store these materials, and a villa on the seashore in Umm Al Qwain for mixing them. Although Al Shaar mentioned Mr Lodhi's name seven times in his statement, he expressly states that he witnessed Mr Lodhi doing something relevant on only two occasions: once at a meeting when shipments of Mandrax tablets to South Africa was discussed, and once when money said to relate to these shipments was being handled.

125. In a second affidavit dated 3rd April 2000, however, this witness gave more direct evidence implicating Mr Lodhi. He said that on the day of his arrest, when the police raided the desert factory in Umm Al Qwain, he saw Mr Lodhi driving his Lexus car towards the factory. When Mr Lodhi saw the police, however, he escaped.

126. One of the grounds on which Mr Fitzgerald objected to the admission of Al Shaar's evidence was that his affidavits were in English and Al Shaar did not understand English. His first affidavit bears a signed manuscript note by the interpreter, Iyad Abu Farha, which reads:

"Translated to Mr Basem by Iyad Abu Farha, sworn translator"

127. The second affidavit bears a longer signed manuscript note which reads:

"I, the undersigned/Iyad S Abu Farha, swear by God that Mr Basem A R Al Shaar has signed the above-mentioned affidavit verbally in my presence, and after printing, I translated the same to him from English to Arabic before he signed it."

128. In a separate affidavit, sworn on 4th April 2000, this interpreter, who is the chief of the translation bureau of Dubai Police Prosecution, attested in relation to Al Shaar's affidavit and the affidavit of another witness who speaks no English (Khaled M Qassim), that all their affidavits "were given by them in my presence verbally and after printing I, as the Public Prosecution Sworn Translator, translated the same from English to Arabic to the above-mentioned persons, they understood and agreed their Affidavits then they signed them".

129. In his ruling the district judge recorded Mr Fitzgerald's objection to the effect that since these witnesses could not read English, this evidence was inadmissible in the absence of an affidavit in Arabic which could be checked against the English translation. The reason for this objection was that the attestors did not understand the words which were being used in their affidavits. The district judge took the view that whilst this practice was less than desirable, it was nevertheless admissible. He thought it fell into a similar category as an affidavit by someone who was unable to read or write. He accepted that in translation there was the possibility of an error occasioning prejudice, but he considered that these were matters which could properly be left to the trial to be resolved.

130. Mr Greenwood encouraged us to uphold the district judge's approach. He said that as with an illiterate or a blind witness, the only knowledge which the witness had of the contents of a document which he signed (or to which he affixed his mark) was what he had heard read back to him. He also referred us to three recent unreported decisions of this court which were said to have taken a broad view of the admissibility of documents in extradition proceedings.

131. We have considered the three authorities to which Mr Greenwood referred us, but we do not think they throw any useful light on the present issue. Nor do we consider that the analogy with the blind or the illiterate witness is apposite. In those cases a court can read what was read to them, and to which they have appended their signature or mark. In the present situation we do not know what Arabic words were said to Al Shaar and the other witness before they appended their names to an affidavit in a language which they did not understand. What is needed is their signature to a document written in Arabic, which other Arabic speakers can check, coupled with an attested translation of their signed affidavit into English.

132. This is the procedure prescribed in this country by section C13.4 of PACE Code C. It is also the procedure prescribed by Rose LJ in paragraphs 44-46 of the recent judgment of this court in Saifi v Governor of Brixton Prison (unreported, 21st December 2000) which was not, of course, available to the district judge when he made his ruling. We see no substance in Mr Greenwood's submissions that Saifi was a decision under Section 27 of the Extradition Act, whereas the present case was governed by Section 26, or that Rose LJ's ruling has to be read in the light of the peculiar facts of that case, including the widespread evidence of bad faith. In our judgment, since there was no question of Al Shaar's evidence being given to the committing court orally, it was essential for that court to be satisfied that he had put his name to words written in a language which he could understand. We therefore consider that the district judge should have ruled that the evidence of Al Shaar and Qassim was inadmissible.

133. The third category of evidence on which the prosecution relied was the evidence of the police officers who carried out the raids in June 1997. Since we have ruled that Qassim's evidence, written in a language which he could not understand, was inadmissible, the two relevant police officers are Lieutenant Said and Captain Rahman, both officers of the Dubai CID. In so far as Mr Said's evidence does not contain inadmissible hearsay it adds nothing to the case against Mr Lodhi. He was one of the officers who raided the desert factory in Umm Al Qwain on 21st June 1997 and arrested three men there. He found that the factory contained a group of machines similar to the machines which produced tablets in another factory in Dubai. He also saw some big trailers "full of tablets inside sacks of rice". These were brought to Umm Al Qwain police, after being inspected.

134. Captain Rahman, for his part, carried out a lawfully authorised search of Mr Lodhi's house in his wife's presence. In a pocket of one of Mr Lodhi's suits, which was kept in a steel cupboard in his bedroom, he found a piece of paper which showed drawings of two cylindrical shapes, with measurements attached. In a second affidavit he produced a copy of this piece of paper which he certified to be a true copy. He did not say what he did with the paper after he had discovered it, or explain the basis of his confidence that the piece of paper which he identified nearly three years later was a copy of the paper which he had found. Nor did he explain (if he even knew) what had happened to the original.

135. The fourth category of evidence was the scientific and photographic evidence produced by the staff of the two criminal laboratories.

136. So far as the many photographs in the committal papers are concerned, these were all taken in the presence and under the supervision of Major Rabe. He is the director of the criminal laboratory of the Dubai police where he also heads the forensic department. He holds a master's degree in forensic photography and he has produced certificates explaining where the various photographs were taken. 90 were taken at the desert factory at Umm Al Qwain on 22nd June 1997. 55 were taken at the IGT premises on 27th July and 2nd August 1997. A further five were taken on 7th September 1998 and were said to show the similarities between equipment seized at the desert factory and equipment at IGT.

137. The district judge accepted that the photographs had not been proved in what might be described as the routine manner of obtaining evidence from the photographer. On the other hand he said he was satisfied that Major Rabe's evidence properly introduced the photographs as evidence. Since many of the photographs were taken some considerable time after the discovery of the relevant site, and there was no evidence that the site was properly protected and observed, the district judge recognised that there was a persuasive argument that it was not possible to reach any conclusive finding that the site as photographed was identical to the site as found by the police. He considered, however, that these arguments went to the weight to be attached to the photographs rather their admissibility. Although Mr Fitzgerald repeated the same arguments, with some embellishment, before us, we can find no fault with the district judge's approach to the photographic evidence.

138. The other evidence from the criminal laboratories came in a number of different forms. Section 3 of the original Rogatory Request referred to evidence given at the criminal trial in Dubai by "the narcotic drugs and poison expert Mr Qassim Mukhair", who went with a team of experts from Dubai Police criminal laboratory to various places where various things were said to have been found. A cross-reference was made to a one-page, undated affidavit sworn by Major Rabe as director of the laboratory, which summarised the contents of a number of reports. It was not suggested that this evidence was admissible.

139. When the prosecution deployed its case before the district judge on 16th May, there was a new affidavit sworn by Major Rabe on 16th April, to which he exhibited three of the reports described in his earlier affidavit. He added that traces of the drugs were found on various articles in his presence, and that the chemicals found at the premises of IGT were materials used for the production of Methaqualone. He explained that the reports he exhibited "were prepared by Mr Qassim Mukhair, one of my staff, who is currently away on extended sick leave".

140. The first of these reports was dated 7th July 1997 and was signed by a toxicologist whom we will call Dr Babker al Haj. It was countersigned by Dr Abdul Al Amiry, "Director of Criminal Laboratory". It made certain findings about the chemical substances and other materials said to have been found in IGT's warehouse in Sharjah. The second report was dated 8th September 1998, and described what the three signatories found when they went on 16th October 1998 (sic) to an unidentified warehouse which was said to have contained items seized at the two drug manufactories and the IGT warehouse. The effect of their report was that parts found at the IGT warehouse and parts found at the Umm Al Qwain factory fitted together to form a device which was likely to have been used in the operation of manufacturing narcotic drug tablets. The signatories, who said they all went to the warehouse and all made the relevant findings, were described respectively as "Assistant Expert" (2) and "Expert" (1) and the report was countersigned by a man described as "The Expert", who was the acting director of the Criminal Evidence Department.

141. The third report, signed by three of these signatories and a different Director of the Criminal Evidence Department, is dated 7th February 1998. It records that the signatories received on 14th July 1997 three items from the Prosecution Chief. These items were not exhibited or otherwise identified, but one of them was described as a piece of paper with sketches on it. The signatories explained the findings they made when they measured the diameters of a random sample of the (otherwise unidentified) tablets seized from Dubai and Umm Al Qwain, and compared them with the measurements mentioned on the piece of paper. They found that there was a similarity between the diameter (11mm and 11.1mm) recorded in the piece of paper and the diameter of narcotic drugs tablets manufactured at Umm Al Qwain Factory. We would add that these measurements do appear on the copy of the piece of paper exhibited by Captain Rahman, but there is no continuous evidential nexus between Captain Rahman's evidence and the piece of paper examined by these experts.

142. In his ruling on 26th May the district judge noted that Major Rabe had testified to the accuracy of these reports, although he did not prepare them. He said they contained facts and information highly relevant to the issues in the case, particularly in relation to the analysis of chemicals said to have been found at the factory. He said that none of the authors of the reports had provided affidavits, and the reports did not comply with the requirements of Section 9 of the Criminal Justice Act 1967. He did not regard the affidavit of Major Rabe as sufficient in itself to render the reports admissible.

143. He then said:

"I have however considered the provisions of S 23 and S 26 and S 30 Criminal Justice Act 1988. I am satisfied that the authors of the reports are outside the United Kingdom and that it is not reasonably practical to secure their attendance. I believe the source of the document to be authentic; the evidence is relevant and not otherwise available. As this is a preliminary hearing and not a trial I am satisfied, subject to one issue, that the admission of this evidence before me will not result in unfairness to the defendant.

I am satisfied on the `unfairness' point because, if the defendant is returned he will have the opportunity to controvert the evidence at his trial. Whether he is to stand trial, if returned, may become an issue in later submissions in this case. S 30 permits me to grant leave to admit an expert's report in evidence in criminal proceedings whether or not the person making the report attends to give evidence in the proceedings. I have considered S 30(3) and the matters that I have to consider in exercising my discretion. For the reasons I have just given I am exercising my discretion to admit the reports in evidence and I consider the statements from the forensic laboratory are admissible."

144. Because recourse to section 30 of the 1988 Act had not been mentioned in argument on 16th May, the district judge permitted this issue to be re-opened at the adjourned hearing on 19th July. On the previous occasion, although all the original documents were in court, the parties and the district judge were working from copies of the documents in the committal bundle which had been taken some time before the hearing. The originals had had to be sent back to Dubai for certain formalities to be performed, and nobody in court on 17th May realised that five new affidavits had been added to the bundle before it was returned.

145. The existence of these affidavits came to light when the hearing resumed on 19th July. Mr Fitzgerald argued that it was now too late for the prosecution to rely on them, but the district judge decided in the exercise of his discretion to admit them, notwithstanding that the prosecution case had closed. In his third ruling, dated 21st September 2000, he said:

"I am quite satisfied that the omission of these documents was an entirely genuine and innocent error. Nevertheless, the documents were not formally produced to me as part of the case for the prosecution and indeed copies of the affidavits had not been served on the defence. I am therefore satisfied that these affidavits, although physically present in court in the bundle of originals, did not form part of the prosecutions case.

In the light of that decision, I am asked to consider giving leave to the prosecution to re-open their case to permit the introduction of these affidavits. I am satisfied that the affidavits are largely formal in content and I am satisfied that no prejudice or injustice would be suffered by the defendant if I exercised my discretion to permit the affidavits to be admitted. I do so exercise my discretion to admit the affidavits."

146. In this court Mr Fitzgerald renewed his arguments to the effect that these new affidavits should not be taken into account. He referred us to a number of well-known cases relating to trial on indictment which show that it will only be on a very rare occasion that the prosecution is to be permitted to re-open its case by adducing additional evidence to fill up gaps in its case.

147. It appear to us that it would be quite wrong to override the way the district judge exercised his discretion in the unusual situation which confronted him. We share his view that these five very short affidavits were largely formal in content. They were all sworn on 9th May 2000, and they were all physically in court, if unnoticed, when the prosecution opened its case a week later. Their deponents briefly verified the contents of the report which they had signed, or countersigned. They also mentioned their qualifications and the length of time they had worked at the different criminal laboratories. One of the signatories was no longer working in Dubai, but his two reports were verified by all the other signatories.

148. Mr Fitzgerald relied, however, on a number of other arguments as well. For instance, he referred to the unexplained absence of Mr Qusim Mukhair, who was said to have prepared the reports. He also complained about a lack of continuity of evidence in certain respects, and about the fact that the expertise of the experts was not properly established in evidence.

149. There is in our judgment nothing in the first and third of these points. Even if Mr Qusim Mukhair "prepared" the reports, they were signed and verified by members of the laboratory staff who professed direct knowledge of their contents. Similarly, although it would have been better if the deponents had identified their technical qualifications with greater precision, they are all graduate members of the laboratory staff who have had a number of years experience in the work of the different laboratories, and it would be quite wrong to refuse to admit these technical reports on the ground that the technical qualifications of the makers were not fully stated.

150. As to continuity, we see no reason why the report from the Sharjah police laboratory dated 7th July 1997 should not be admitted, since Dr Babaker al Haj, a forensic toxicologist, spoke directly to its contents. He examined the contents of the IGT warehouse, took the samples he described and reported on his analysis of the samples. The February and September 1998 reports are more problematic. As to the first, there is no direct evidence to connect the piece of paper seized by Captain Rahman on 22nd June 1997 with the piece of paper with sketches on it which was received by the Dubai police laboratory from the prosecution chief on 14th July 1997. Nor is there any explanation of what happened to it between then and 7th February 1998. As to the second, there is no evidence explaining who seized what equipment from the IGT warehouse or the desert factory in Umm Al Qwain, or the conditions under which that equipment was stored up to the time it was inspected over a year later. There is also an obvious mistake over the date of this inspection, to which we would be unwilling to attach any significance.

151. By section 9(8) of the Extradition Act, as amended, there is a requirement that before committing a person accused of an offence the court of committal must be satisfied that the evidence would be sufficient to make a case requiring an answer by that person if the proceedings were the summary trial of an information against him. In our judgment, whilst the remaining evidence gives cause for suspicion, once the evidence of the two co-conspirators and the inadmissible part of the evidence of Lieutenant Said has been eliminated, the remaining evidence falls short of that standard even if, which would be inappropriate, we were to give the prosecution the benefit of every doubt about the admissibility of some of the laboratory evidence. For these reasons we are satisfied that Mr Lodhi should be discharged on the grounds that the admissible evidence against him did not satisfy the requirements of section 9(8).

152. We would add that if there was any procedure by which the defects in Al Shaar's evidence could be remedied short of a new extradition request being made, so that a statement in Arabic from Al Shaar to similar effect could now be put before the court, it would have been difficult to persuade us not to remit the case to the district judge for reconsideration.

Part 15 Section 9 issues: (iii) The formulation of Charge 1

153. In these circumstances we need not say anything about the formulation of Charge 1. We received written submissions from Mr Fitzgerald (to which Mr Greenwood made response) in relation to certain features of this charge after the termination of the oral evidence, and because the matter is now completely academic we see no reason to make any ruling on the matters he raised.

Part 16 Conclusion

154. For these reasons we direct that Mr Lodhi be discharged.