A Scottish bus driver facing extradition to Dubai to serve a sentence of 12 months’ imprisonment following his conviction of crimes of dishonesty has successfully challenged a bid to remove him to the United Arab Emirates after he argued that his human rights would be breached.
Garnet Black, 64, fled the Middle East with his daughter to escape her abusive Emirati husband and claimed that the alleged financial offences, brought by his former son-in-law, were “totally false” and that he initiated these proceedings to put “pressure” on his former wife to return to the UAE with his child.
A sheriff ruled that the respondent, a former managing director of an international logistics company who was the subject of an extradition request by the Government of the UAE, would not receive a fair trial as he would not be able to afford a lawyer to defend himself in any prosecution or appeal.
Sheriff Tom Welsh QC heard that the respondent spent four years living in Dubai, where he worked as a cargo controller/managing director with M&M Militzer & Münch LLC (M&M), formerly known as M&M Emirates Logistics, an international freight distribution, shipping and logistics company based at Dubai Airport Free Zone Area (DAFZA).
The applicant’s extradition request stated that on 26 October 2010, the day the respondent left the UAE, he embezzled $250,000 in ‘breach of trust’ from the bank account of M&M and misappropriated two company cheque books, one of which he used to embezzle a further $95,000 on 27 October 2010 when he was in Hong Kong, both of which acts are contrary to Article 121/1 and Article 404/1 of the UAE Federal Criminal Code.
Edinburgh Sheriff Court was told that in April 2012 he was convicted and sentenced in absentia to 12 months imprisonment for embezzlement of $250,000 and $95,000 and ordered to pay M&M the sum of AED 21,000 as temporary civil compensation, plus expenses.
But he only became aware of the charges when, following receipt of the extradition request dated 16 July 2013, a warrant was issued and he was arrested at his home in Lesmahagow, Lanarkshire.
He was initially denied legal aid but the Scottish Legal Aid Board eventually reviewed its decision and granted him legal aid to fight his case in the extradition court.
The respondent gave evidence that he was married with one daughter, who also lived and worked in the UAE, during which time she married a local Emirati citizen, Saeed Abdullah Saeed Abdullah Al Muheri and had a child together.
But his daughter’s marriage soon turned sour after it emerged that her husband, who was from a wealthy family and enjoyed considerable influence with the local police, was violent and abusive towards her.
The respondent was told there was nothing that could be done about the abuse as an Emirati husband was “entitled to chastise his wife”, but the situation for his daughter was becoming increasingly more intolerable and he and his wife resolved to get her and their granddaughter out of the UAE and back to Scotland.
After returning home, the respondent’s daughter divorced her husband but Al Muheri came to Scotland to try and persuade them to return to the UAE.
The respondent said he told him he would be executed if he did not get his daughter back and said he will be stabbed to death in jail, if returned to the UAE.
He claimed that the real reason he was wanted in Dubai was as a “bargaining chip” to secure the return of his daughter and granddaughter to the UAE.
The respondent resisted extradition on the basis that it was barred by reason of “extraneous considerations”, as defined by section 81 of the Extradition Act 2003.
He also claimed he would be denied certain procedural rights, which parliament had guaranteed, including a right to legal aid if re-tried, should he be extradited to the UAE.
Counsel for the respondent Niall McCluskey argued that the respondent did not have a right to a European Convention on Human Rights-compliant appeal amounting to a review or retrial because the UAE had no system of legal aid and the respondent could not afford to pay for a local Emirati lawyer.
Finally, it was submitted that, if granted, extradition would be “incompatible” with his human rights, namely those set out in article 3, article 5 and article 6 of the ECHR, as incorporated into UK law by the Human Rights Act 1998.
‘Real risk’ of human rights violations
The sheriff discharged the respondent after ruling that there was guarantee, in terms of section 85 of the 2003 Act, that he would receive free legal advice if extradited.
In a written judgment Sheriff Welsh said: “I am not satisfied an essential statutory pre-requisite to extradition has been established by the applicant with regard to the legal aid guarantee contained in s85(8)(a) of the Act. It is for the applicant to demonstrate that free legal aid is guaranteed in the UAE to those convicted in absence if they have insufficient means to pay for legal representation and it is in the interests of justice to do so, before extradition can be ordered.
“I believed the respondent when he told me that he has insufficient funds to pay for his defence in the UAE and that he intends to contest the case against him, if extradited…Accordingly, in the absence of proof that a minimum procedural right to legal aid exists and is guaranteed, in Dubai, under UAE law, to those convicted of a misdemeanour, in their absence, I answer the question posed in s85(5) in the negative, as a consequence of which I am bound to discharge the respondent in terms of s85(7).“
The sheriff was not convinced that there was a real risk that the respondent’s article 5 rights will be violated should he be extradited to the UAE, but found that his article 3 and 6 rights would be breached.
Sheriff Welsh said: “I consider there are substantial grounds to believe that if extradited the respondent will be at real risk of an article 3 violation by reason of inadequate medical provision and treatment if he is housed in the squalid, unhygienic and overcrowded conditions of Bur Dubai Police Station detention centre which I accept is highly likely, pre-trial.
“I also consider that given the degree of influence high ranking Emiratis have over the local police, there are substantial grounds to believe that a real risk exists that if he is returned he will be subjected to torture or inhuman and degrading treatment or punishment in Bur Dubai Police Station instigated by his former son-in-law who is the sponsor of the complainer company and who has an obvious motive to apply pressure on the respondent to secure the return of his own daughter to Dubai or direct revenge against him for his part in her departure and permanent removal from the UAE.“
He added: “I consider that if the respondent were to be extradited to the UAE and detained in custody pending trial, which I consider he would likely be and there has been no assurance he would not be, in his physical condition, there to defend himself, in Arabic, which he cannot speak, without the guarantee of free legal representation, if the interests of justice so require, then that would constitute a breach of his article 6 right to a fair trial. I consider there are substantial grounds to believe that there is a real risk that the respondent in this case if extradited would as a matter of fact be put in that position.
“No assurance has been received that he would be bailed but even if it were, I would still consider that without a guarantee of free legal aid if he has insufficient means to pay for legal assistance, if the interests of justice so require then a real risk of an article 6 violation is established. Had I not already decided to discharge the respondent on the basis of s85(5) because the applicant has failed to show his retrial or appeal would be ECHR compliant, I would have discharged him on this basis as well.”