The House | Vital extradition protections have been lost in the new Crime & Policing Act

4 min read11 min

This will arise where overseas courts try and convict people in their absence without their knowledge and then apply for their extradition.   

In such circumstances, section 20 (5) of the Extradition Act 2003 previously required that where a UK court found the person had not deliberately absented themselves from the foreign trial, extradition could proceed only if there was a guaranteed right to a full retrial.  If the foreign country refused to guarantee a retrial, then extradition was refused. 

The Supreme Court ruling in the Merticariu case in 2024 confirmed this interpretation.  Mr Merticariu was convicted in his absence of burglary in Romania, who then sought his extradition.  However, their extradition request showed no evidence that he knew about the trial and had deliberately absented himself, or had waived his right to be present, no doubt because on the facts he had done neither. 

He argued that if he were extradited, article 6 ECHR gave him an absolute and unconditional right to a retrial in Romania, not merely a right to apply for a retrial, and that it was for our courts, not the foreign court, to decide before permitting extradition whether he had such a right.  The Supreme Court agreed, saying this was the effect of section 20 (5) of the 2003 Act so as to avoid ‘a flagrant denial of justice’ contrary to article 6.

Parliament has now reversed that position.  The effect of section 246 of the 2026 Act is that extradition may proceed even where any retrial depends on the discretion of the State requesting extradition, a State which has already tried and convicted the person in their absence.  The decisive assessment of whether a retrial is necessary is shifted away from our courts and left to foreign systems.  Moreover, if the person to be extradited had a State appointed legal representative at their original trial – even if they were not aware of this and had had no contact with the lawyer – the 2026 Act will now deem them to have been present at the trial and so liable to face imprisonment without a retrial. 

In the early hours of 19th March 2026, the House of Lords tried, but failed, to remove section 246 from the then Bill, so we now have the absurd situation that British citizens in that predicament will have to apply to Strasbourg to try to secure an injunction against extradition.  The most our own courts will be able to do is rule section 246 incompatible with article 6 which will not itself prevent extradition.  In other words, it will no longer be up to our own courts to determine if extradition should go ahead in these circumstances.

It is immensely disappointing that this Government has chosen to dilute fair trial protections in this country.  The backstop of Strasbourg is at best a remote and uncertain remedy, beyond the reach of many in practice.  It is a striking outcome that a government led by a longstanding human rights lawyer has chosen a course which relinquishes domestic oversight and leaves the fate of British citizens to be determined by foreign courts, with only a distant international remedy as a last resort (and only as long as we remain a member of the Convention of course). 

Whilst the number of cases affected may be small, this is nevertheless something we may live to regret when one of our citizens needs shielding from a blatant abuse of process overseas and finds his or her fundamental rights and protections have been eroded.

Lord Carter of Haslemere is a consultant in the public law team of Kingsley Napley LLP and a former General Counsel at 10 Downing Street