Extradition without safeguards: the troubling reach of the Crime and Policing Act 2026

Imagine you are woken up one day with a loud knock at the door.  It is the police who have a warrant for your arrest pursuant to an extradition request from a European country which you visited on holiday a few years earlier. 
 

In understandable shock, you are told you must appear before the Westminster Magistrates’ Court the following day. The reason given is that the country in question has convicted you in your absence of a burglary they say you committed during your holiday, and they seek to extradite you to serve a sentence of imprisonment.  Apparently, the country in question appointed a public lawyer who represented you at your trial, but with whom you have had no contact whatsoever.

You vaguely remember being asked by the local police while you were there about your whereabouts when the burglary took place, but you had heard nothing more and had returned to the UK in blissful ignorance that you had subsequently been tried in your absence and convicted.  You are entirely innocent.  

This is, of course, a total nightmare, but one which closely resembles the facts of a recent case which went all the way to our Supreme Court in 2024. That case concerned precisely such a dilemma for the appellant, Mr Merticariu, who was convicted in his absence of burglary in Romania, which then sought his extradition.  But their extradition request did not indicate 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 was quite unaware of his trial and conviction.

Therefore, the key question from a fair trial point of view was whether he would have the right to a retrial after being extradited.  However, on being pressed repeatedly by our extradition authorities to say if Merticariu would have a retrial, the Romanian authorities refused, merely replying that he could ‘request the reopening of the criminal proceedings’, and pointing out that he had been legally represented at his trial by a ‘public defender’, even though the appellant had had no contact with this lawyer at any stage. 

He successfully argued in the Supreme Court 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 as had been offered by Romania, and that it was for our courts, not the foreign court, to decide if he had such a right.  If our courts determined he was entitled to a retrial and there was no guarantee of that, he should not be extradited.  In paragraph 54 of the judgement, the Supreme Court said this was the effect of section 20 (5) of the Extradition Act 2003 so as ‘to avoid a flagrant denial of justice contrary to article 6’.   

One might think it is obvious, therefore, that a UK Government legislating after that judgment to amend section 20 (5) so as to allow extradition if the person has a mere ‘right to apply’ for a retrial on return (even if our courts have already decided they have an ‘entitlement’ to such a retrial), would be flying in the face of the ruling in Merticariu, and with article 6.  

Yet this is precisely what the Government have done in the Crime and Policing Act 2026.  Section 246 of that Act amends section 20 (5) of the 2003 Act to provide that even if our courts have decided the person did not deliberately absent themselves from the original trial and therefore has a right to a retrial, that right is contingent on the foreign court not taking a contrary view after extradition has taken place.  Moreover, subsection (7A) provides that if the person to be extradited had ‘legal representation’ at their original trial then they are deemed to have been present at the trial even if they had had no contact with the lawyer in question (as of course happened in Merticariu and which our Supreme Court rejected as insufficient).

During the parliamentary passage of the 2026 Bill, section 246 was debated in the House of Lords at Report stage when it was clause 212 (see Hansard,18^th March 2026 at Cmn.1008).  A vote took place at 12.41 am on 19^th March on an amendment to remove that clause from the Bill.  Notwithstanding strong support for the amendment from many eminent lawyers who spoke and voted for it, it was defeated by 14 votes.  Some might think that 12.41am in the morning is not an ideal hour at which to be deciding issues of such importance. 

Back to you, dear reader, who in our imaginary scenario are facing extradition and imprisonment in a foreign country when you had no knowledge of the trial at which you were convicted.  I am afraid section 246 has not helped your predicament.  Having been ‘legally represented’ albeit without your knowledge, section 246 will now deem you to have been present at your trial when you were not.  Yes, an Act of Parliament can turn fiction into fact.  You will not therefore have a right to a retrial but merely ‘a right to apply to have the criminal proceedings reopened’ after you have been extradited, and this application will be up to the foreign court who might decide you deliberately absented yourself, eg. by failing to notify the police you were leaving the country.

Our extradition courts could declare section 246 incompatible with article 6 of the ECHR but this will not help you in the short term since that section would in the meantime continue to have the force of law.  So you would need to apply to the Strasbourg Court for an injunction preventing your extradition. 

But it is a sad pass that the 2026 Act will force individuals facing extradition in these circumstances to rely on Strasbourg as the last line of defence, rather than on British courts. The number of cases affected may be small. When one arises, however, we may regret having lowered our own standards rather than insisting that justice be done before allowing extradition.

Lord Carter has also written on this subject for Politics Home 21st May 2026. Link can be accessed here.  

About the authors

Lord Carter of Haslemere CB (Harry Carter) is a barrister who joined the Government Legal Service as a Home Office lawyer in 1989, becoming Deputy Legal Adviser to the Department in 2009. 

Rebecca specialises in extradition and cross-border criminal matters. She advises individuals, families and family offices facing complex criminal investigations, extradition proceedings and cross-border enforcement action with an international dimension.