Right to a retrial? Maybe. Amendments to the Extradition Act 2003

Imagine that you have moved to the UK to start a fresh chapter. You take up employment, rent a house, perhaps meet a partner and start a family. Some years later you are arrested and brought before the extradition courts in London. At the point of your arrest (and in a state of complete shock) you learn for the first time that you in fact have a conviction in your state of origin, and that you are required to serve a prison sentence.

Hundreds of questions will be racing through your mind. Among them might be, ‘the court won’t send me back unless I can have a retrial, will it?’

The answer to that question lies in section 20 Extradition Act 2003 in respect of Category 1 territories and in section 85 in respect of Category 2 territories. These provisions govern the extent to which a judge must be satisfied as to retrial rights for somebody convicted in their absence.  

However, section 246 Crime and Policing Act 2026 (which came into force on 29^th September 2026) has now modified that answer and has significantly qualified the right to a retrial requirement, amending both section 20 and section 85 of the Extradition Act 2003.

The protections under the old law

Sections 20 and 85 Extradition Act 2003 apply where a Judge is satisfied that a defendant was tried and convicted in their absence. Provided the Judge is satisfied that the Requested Person was not deliberately absent from trial, and was not represented by a counsel of their choice, the question of the right to a retrial comes into focus.

Under the old wording of the Act, the Judge had to be satisfied that the Requested Person will have the right to a retrial in the Requesting State. That retrial must include the right to examine witnesses, to put forward one’s own witnesses and the right to defend oneself in person or through a lawyer of one’s own choosing. It may also encompass free legal representation in some cases.

The UK Supreme Court was asked to consider the right to a retrial in Merticariu v Court of Arad, Romania [2024] UKSC 10. The Appellant argued that there must be an entitlement to a retrial. The Requesting State argued that the right merely to apply for such a retrial was sufficient to satisfy section 20.

At paragraphs 63 and 64 the Supreme Court concluded that a Judge could not treat a mere right to apply for a retrial as satisfactory if that right was contingent on a local judge deciding for themselves whether someone had been deliberately absent.

This how now been expressly reversed.

The change brought in by section 246 Crime and Policing Act 2026

Section 246 Crime and Police Act 2026, which came into force on 29^th September 2026, adds the following words to both sections 20(5) and 85(5) Extradition Act 2003:

‘(a) the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial;

(b) the person would be so entitled unless a court in the territory concerned were to decide that they deliberately absented themselves from their trial;

(c) the person was entitled as mentioned in paragraph (a) or (b) but expressly waived that entitlement;

(d) having been informed that they were entitled as mentioned in paragraph (a) or (b), the person failed to exercise that entitlement before the end of the period permitted for exercising it.’

The new sub-section (5)(b) expressly departs from the Supreme Court decision in Merticariu.

It will now be sufficient for the Requesting State to satisfy the extradition court that the Requested Person may apply for a retrial. The right to a retrial to be conditional on the local court decision as to whether a defendant was deliberately absent.

Thus, an English judge can have decided that someone was not deliberately absent from trial, order their extradition on the basis that they have the right to apply for a retrial, the local judge decide that they had waived their right to be present at their trial after all, and deny them a retrial. Two different findings of fact will be able to co-exist in different jurisdictions.

There is a further ambiguity arising from the new sub-section (7A), which provides that:

‘(7A) For the purposes of subsection (1), a person convicted at a trial at which they were legally represented (but not present in person) is to be treated as having been convicted in their presence.’

While it has long been accepted that a defendant is deemed present at trial if they are represented by a lawyer instructed by them, the wording of this provision is ambiguous. Many jurisdictions put in place a court appointed lawyer when they proceed in absentia. That lawyer acts in the best interests of the absent defendant, without their instructions.

On a plain reading of the new wording, that would suffice and would close the door to a section 20 or section 85 argument. This would represent a further watering down of fair trial rights for extradited persons.

It remains to be seen how the extradition courts interpret this new provision.