Supreme Court extradition appeal allowed: the right of retrial must be unambiguous 

The Supreme Court has upheld the appeal in Merticariu v Romania after clarifying the correct approach to s. 20 and s.85 of the Extradition Act 2003. It accepted the Appellant’s submission that where a defendant was convicted in their absence and not deliberately absent from their trial, a right merely to apply for a retrial failed to comply with our statutory protection. 

The court stipulated that an extradition request should clearly provide the information needed for a judge to determine the question of a defendant’s deliberate absence from trial and entitlement to retrial. 

The court ruled that a finding of fact of non-deliberate absence by an English Judge should be respected by a requesting judicial authority which is, after all, represented in extradition proceedings by the CPS and so will have contributed its own evidence to the ruling.  This would be consistent with the comity between judicial authorities established by the extradition scheme.

A right to apply for a retrial, which application may be refused, cannot satisfy the certainty that ss. 20 and 85 of the Act demand. Both the Extradition Act 2003 and amendments to the 2002 EAW Framework Decision in 2009 supported this approach.  To deny a retrial to someone whose absence was not deliberate, may well give rise to a flagrant denial of justice contrary to Article 6 ECHR.

This judgment enhances defence protections against extradition and overturns two Divisional Court decisions in Zeqaj v Albania and BP v Romania. Those judgments were wrong to hold that any dispute about a requested person’s deliberate absence and entitlement to a retrial could be resolved afresh by the requesting state at a new hearing post-extradition; rather this was a determination to be made here in the UK which should be respected by the requesting authorities.

The decision and Court summary are available here.

In Merticariu v Romania [2024] UKSC 10, Ben Cooper KC, Malcolm Hawkes and Mary Westcott were instructed by Katy O’Mara and Rebecca Field of ITN Solicitors (Malcolm acted until August 2023).

Shyan MacTavish of Hodge Jones & Allen Solicitors instructed Malcolm at the High Court appeal.

The Appellant was represented at first instance by Noam Almaz of Stokoe Partnership Solicitors.