For extradition practitioners, 29 September 2026 was a date worth putting in the diary.
Sections 20 and 85 of the Extradition Act 2003 are provisions with which those of us regularly appearing in conviction cases become intimately familiar. Some of the most difficult cases are those in which a requested person was convicted without being physically present and the requesting state says, in one form or another: he can have a retrial when he comes back.
Until now, the answer to that proposition has been heavily influenced by the Supreme Court’s decision in Merticariu v Judecatoria Arad, Romania [2024] UKSC 10, [2024] 1 WLR 1499, on appeal from Merticariu v Judecatoria Arad, Romania [2022] EWHC 1507 (Admin). From 29 September, parliament changed the rules.
The problem after Merticariu
Under the existing section 20, where a requested person was convicted in their absence, the judge asks whether they deliberately absented themselves from the trial. If not, section 20(5) requires the judge to decide whether the person would be entitled, following extradition, to a retrial or, on appeal, to a review amounting to a retrial.
In Merticariu, the requested person had been convicted in Romania in his absence. The District Judge found that he had not deliberately absented himself. Romanian law permitted him to apply for a retrial, but whether he actually obtained one depended upon the Romanian court subsequently deciding that his absence had not been deliberate.
The Supreme Court unanimously allowed his appeal. An entitlement to apply for a retrial was not the entitlement to a retrial required by section 20(5). The latter could not depend upon the subsequent determination of a substantive contingency by the requesting state.
For those of us defending conviction warrants at Westminster, the distinction is anything but academic. Section 20 cases frequently involve further information which says, in effect, that a requested person may seek a retrial on return, while leaving some important question to be determined subsequently by the foreign court. The real work is often in establishing precisely what the foreign procedure provides rather than accepting the label attached to it.
I saw the practical importance of this again in June this year when I represented the successful appellant in the High Court in A.M. v Poland (AC-2025-LON-004580). The case concerned an aggregate eight-year sentence covering 64 offences. The appellant had been absent from relevant proceedings while in custody, despite requesting to attend, and the Polish court ultimately confirmed that he had no entitlement to a retrial. The High Court allowed the appeal, quashed the extradition order and discharged him.
Cases of that kind demonstrate why the precise statutory language matters. ‘There is a procedure available’ and ‘he is entitled to a retrial’ are not necessarily the same proposition.
Parliament’s answer
Section 246 of the Crime and Policing Act 2026 now substantially rewrites that part of the enquiry.
The familiar first category remains: the requested person would be entitled to a retrial or a review amounting to a retrial.
But section 20(5) will additionally be satisfied where the person would have that entitlement unless a court in the requesting territory decides that they deliberately absented themselves from the original trial.
That is a significant change to the position considered in Merticariu. Parliament’s intention is explicit: a retrial entitlement may now satisfy section 20 notwithstanding that it remains conditional upon the foreign court subsequently determining deliberate absence. Equivalent amendments are made, in respect of Part 2 cases, in section 85.
Two further categories are introduced. The provision can also be satisfied where the requested person had the relevant entitlement but expressly waived it, or where, having been informed of it, they failed to exercise it within the permitted period.
Representation may now be decisive
There is another amendment which practitioners should not overlook.
New section 20(7A) provides that a person convicted at a trial at which they were legally represented, but not personally present, is to be treated for the purposes of section 20(1) as having been convicted in their presence. Section 85 is amended correspondingly.
That potentially changes the route through the section altogether.
In practice, I would therefore want considerably more than a bare assertion in a warrant that the requested person was ‘represented’. Who instructed the lawyer? Was the lawyer chosen by the defendant or appointed by the court? What authority did they have? What actually happened at the trial?
Those factual questions may now acquire still greater importance.
Bertino has not disappeared
Nor should the amendments be read as making deliberate absence irrelevant.
In Bertino v Public Prosecutor’s Office at the Court of Pordenone, Italian Republic [2024] UKSC 9, [2024] 1 WLR 1483, on appeal from Bertino v Public Prosecutor’s Office, Italy [2022] EWHC 665 (Admin), the Supreme Court considered when a person may properly be said to have ‘deliberately absented himself from his trial’ for the purposes of section 20(3).
The question remains important. What changes is the consequence of a foreign retrial entitlement which itself depends upon a later determination of deliberate absence.
Practitioners will still need to interrogate the foreign-law material carefully. What exactly is the retrial mechanism? What must the requested person do to invoke it? Is there a time limit? Has it been waived? What questions remain for the foreign court? And does any proposed 'review' really amount to the retrial contemplated by the Act?
The immediate trap: which section 20?
Perhaps the easiest mistake after 29 September will be to assume that the amended section applies to every hearing taking place after that date.
It does not.
The Crime and Policing Act 2026 (Commencement No. 3 and Saving Provisions) Regulations 2026 (SI 2026/960) brought section 246 into force yesterday but preserved the previous provisions in Part 1 cases arising from arrests under sections 3 or 5 which occurred before commencement. Corresponding savings apply to relevant Part 2 arrests under sections 71, 73 and 74A.
For some time, therefore, Westminster Magistrates’ Court and the High Court will be applying two materially different versions of sections 20 and 85 at the same time.
That is perhaps the most immediate practical point.
When I receive a conviction warrant involving a trial in absence now, the first question I will ask will not be about Merticariu, the wording of a Polish or Romanian retrial assurance, or even whether the requested person knew about the proceedings.
It will be much simpler:
When was he arrested?
George Hepburne-Scott is head of extradition at Church Court Chambers. He specialises in extradition defence and regularly appears at Westminster Magistrates' Court and in extradition appeals before the High Court
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