Recent Developments in Extradition Law- Bridging Article 6 ECHR and Section 20 Extradition Act 2003

09 May 2024

This article was written by Enrico Braguglia

On 6 March 2024, the Supreme Court handed down judgment in two cases that raised important questions under section 20 of the Extradition Act 2003.

Section 20 applies to requested persons who have been convicted in the requesting. The first question that raises under section 20 is whether the requested person was convicted in their presence. If not, the judge at Westminster Magistrates’ Court will be required to consider whether the requested person was deliberately absent from trial (section 20(3)).

In other words, if the requested person knowingly chose not to attend their trial, they can be seen as having waived their right to be present at trial and can therefore be extradited without a re-trial.  If, on the other hand, the defendant did not deliberately absent themselves from trial, it needs to be established that, upon extradition, they would be entitled to challenge their conviction by means of a re-trial (section 20(5)).

Bertino v Italy- Deliberate Absence?

The decision in Bertino deals with the notion of deliberate absence and the issues surrounding “manifest lack of diligence”. The following questions were certified:

For a requested person to have deliberately absented himself from trial for the purpose of Section 20(3) of the Extradition Act 2003 must the requesting authority prove that he has actual knowledge that he could be convicted and sentenced in absentia?

Where the requesting authority asserts that it can be demonstrated by inference that a requested person could reasonably foresee that he could be convicted and sentenced in absentia, must the inference be the only reasonable inference?”

In essence, the Court held that deliberate absence amounts to a full and unequivocal waiver of the right to be present at trial. That is, the requested person must have knowingly foreseen and accepted the consequences of not being present at trial and must have therefore relinquished that right of their own choosing.

In Bertino, the requested person’s failure to inform the police of a change of address was not sufficient to establish that he was deliberately absent from trial. In other words, a manifest lack of diligence resulting in the requested person’s ignorance of the criminal proceedings in the requesting state should not be taken as deliberate absence as such.  Judicial authorities are now expected to warn requested persons that not attending trial, or not complying with conditions imposed by the police throughout the investigations, might result in a trial and conviction in absentia. As such, the nature of the warning given to requested persons will be the object of greater scrutiny.

Merticariu v Romania

In Merticariu, the Court was concerned with the interpretation of the right to re-trial under section 20(5) of Extradition Act. Chamberlain J certified the following question of general importance following the appeal proceedings:

In a case where the appropriate judge has decided the questions in section 20(1) and (3) of the Extradition Act in the negative, can the appropriate judge answer the questions in section 20(5) in the affirmative if (a) the law of the requesting state confers a right to retrial which depends on a finding by a judicial authority of that state as to whether the requested person was deliberately absent from his trial; and (b) it is not possible to say that a finding of deliberate absence is ‘theoretical’ or ‘so remote that it can be discounted’? If so, in what circumstances?

In this case, there was no indication on the European Arrest Warrant that the requested person would be entitled to a re-trial upon their extradition. As this is a Romanian case, Article 466 of the Code of Criminal Procedure applied, providing the requested person with a right to apply for a re-trial of the case. However, this meant that the right to a re-trial would have been contingent on the Romanian court’s assessment of whether the requested person was deliberately absent from and legally represented at trial.

The Court held that the “natural and ordinary meaning” of section 20 does not envisage an opportunity to apply for a re-trial. Rather, it provides an unequivocal right to have one’s conviction reviewed. The guarantee provided by the Romanian law is not sufficient, as it would allow Romanian authorities to secure a requested person’s extradition with the promise of offering a re-trial, and then revisit this position, upon the requested person’s surrender, in light of a finding on deliberate absence. This approach would clearly offend the principle of mutual trust underlying all extradition processes.

By establishing that the right to re-trial must be unequivocal for the purposes of section 20, the Supreme Court also indicated that the caselaw on this issue had gone off on a tangent. The decision in BP v Romania was overturned, as it was wrong to hold that, under section 20(5), the right to apply for a re-trial could be a procedural step to invoke the conditional, substantive right to a re-trial.

Whereas the caselaw had developed a diluted interpretation and application of section 20, the Court preferred a literate approach: the right to a re-trial is not the same as the right to apply for one. Interestingly, a similar approach has already been adopted by other European jurisdictions in relation to Romanian requests, including Denmark and the Netherlands.


The Supreme Court’s decisions are welcome developments for extradition defence practitioners. Although each case will turn on its own facts, the Supreme Court’s findings are relevant for a number of countries that tend to try defendants in absentia. The judgments re-instate important safeguards to protect key aspects of the right to a fair trial under Article 6 ECHR, including a defendant’s right to be tried in person, whether during the proceedings or at re-trial. The courts in this jurisdiction had overly broadened the definition of deliberate absence by assimilating it with manifest lack of diligence, while also diluting the essence of the right to a re-trial. Importantly, many individuals in the past years and months have been extradited on the basis of what is now bad law. 

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Katy Smart

Head of Extradition

Katy is a leading specialist extradition lawyer, listed in the Legal 500 for extradition and crime and ranked as a Band 1 extradition lawyer in Chambers and Partners. 

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