On 6 March 2024, the Supreme Court handed down two important decisions that related to issues under section 20 Extradition Act 2003:
- Bertino v Public Prosecutor's Office Italy [2024] UKSC 9
- Merticariu v Judecatoria Arad, Romania [2024] UKSC 10
Notably, these two cases had the same constitution of the Court, with Stephens and Burnett LJJ giving a joint judgment in both cases, with which the rest of the Court agreed.
These two cases offer welcome safeguards and parameters for extradition cases where the requested person has been tried in absence and where there is no right of appeal against conviction. While each case will turn on its own facts, it is clear that the Supreme Court has sought to underline the importance of a fair trial and that the right to be tried in person is a key feature of a fair trial. The questions that a court charged with executing an extradition warrant has to ask itself under section 20 Extradition Act 2003, are therefore key safeguards of those rights and any court should exercise the necessary caution where those rights may be at risk.
While the cases deal with different issues, the Supreme Court emphasised the key ethos behind section 20:
…the right of a criminal defendant to be present at trial [is] guaranteed by article 6 of the Convention. In Sejdovic v Italy (Application No 56581/00), [2006] 3 WLUK 1 the Grand Chamber of the European Court of Human Rights (“the Strasbourg Court”) reiterated, at para 84, the importance of “the duty to guarantee the right of a criminal defendant to be present in the courtroom – either during the original proceedings or in a retrial –”. The Strasbourg Court stated that it “ranks as one of the essential requirements of Article 6.” (Merticariu at paragraph 54)
Section 20 Extradition Act 2003
Section 20 applies to requested persons who have already been convicted and whose extradition is sought to serve the associated sentence. Section 20 sets out a staged approach:
- Was the requested person convicted in their presence (s20(1) EA 2003)? In other words, were they present at their trial?
If so, that’s the end of the matter as far as section 20 is concerned.
If not …
- Did the requested person deliberately absent themselves from their trial (s20(3) EA 2003)? The logic is that if the requested person was aware of the trial and chose not to attend, they knowingly waived their right to attend the trial and do not have a guaranteed right to a retrial.
If the RP was deliberately absent, then the matter ends there.
However, if they were not deliberately absent, then…
- Is the requested person entitled to a retrial or (on appeal) a review amounting to a retrial (s20(5) EA 2003)? This ensures that there is an opportunity for a requested person to challenge their conviction in the event they were not voluntarily absent from their original trial.
If there is a right to a retrial, or review amounting to a retrial, then the matter ends there.
However, if there is no right to a retrial or review amounting to a retrial, then the Court must discharge the extradition warrant.
Bertino
Bertino considered the second of the three questions, namely whether the requested person was deliberately absent from his trial and how issues around a “manifest lack of diligence” play into this.
The facts of Bertino were that the requested person was told that he was formally under investigation and told to notify the police of any change of address. Four months later, Bertino left Italy and did not provide a forwarding address, which meant that the summons for the hearing, including the notice that a failure to attend might result in a trial in absence, could not be served on him.
The Supreme Court held that it was not enough that there was a breach of the obligation on the requested person to provide the police with a correspondence address to find that he was thereafter voluntarily absent from his trial. It had to be made explicit to the requested person when they were told of this obligation, that a failure to provide a valid address for service and a failure to attend any hearing, could lead to him being charged and convicted in absence.
The Supreme Court confirmed at paragraph 45 that:
The phrase “deliberately absented himself from his trial” should be understood as being synonymous with the concept in Strasbourg jurisprudence that an accused has unequivocally waived his right to be present at the trial (paragraph 45).
The Supreme Court helpfully provided a thorough guide through the relevant caselaw, the main points of which can be summarised as follows:
- The attendance of a defendant at their trial is a right, not an obligation. That right can be waived. (R v Jones (Anthony) [2002] UKHL 5).
- It was for the requesting judicial authority to prove to the criminal standard that the appellant had unequivocally waived his right to be present at his trial.
- The position summarised at paragraph 34 of Cretu v Romania [2016] EWHC 353 was endorsed. This included the point that:
ii. An accused must be taken to be deliberately absent from his trial if he has been summoned as envisaged by article 4a(1)(a)(i) in a manner which, even though he may have been unaware of the scheduled date and place, does not violate article 6 of the Convention.
For example, in IR (2022) C-569/20, the Court specified that where a requested person knew they were due to be tried and thereafter took active steps to avoid being told of the date and place of trial, they would be deliberately absent.
- The waiver of the right to attend trial cannot be inferred merely from the requested person’s status as a fugitive. The waiver must be established unequivocally and that it was done of free will, expressly or tacitly. The requested person must have been able to “reasonably foresee” the consequence that a trial could go ahead in their absence (Sejdovic v. Italy (Application no 56581/00).
- The waiver of the right to attend one’s trial “must not only be voluntary, but must also constitute a knowing and intelligent relinquishment of a right” (Pishchalnikov v Russia (application no 7025/04), see also Sibgatullin v Russia (Application No 143/05))
- The Supreme Court highlighted that the decision to waive participation in one’s trial had to be an informed decision. At paragraph 54, the Court summarised the position:
For a waiver to be unequivocal and effective, knowing and intelligent, ordinarily the accused must be shown to have appreciated the consequences of his or her behaviour. That will usually require the defendant to be warned in one way or another. A direct warning was expected from the judges in the exclusion cases [where defendants were removed from their trial for being disruptive]. The Amended Framework Decision, reflecting an understanding of the obligations imposed by article 6, requires the summons to warn the accused that a failure to attend might result in a trial in absence…
- The Supreme Court cautioned against the assumption that a manifest lack of diligence is necessarily sufficient to lead to the conclusion that the requested person was deliberately absent from their trial. In the case of Bertino, the Supreme Court found that:
55. It appears from the reasoning of the district judge that he may have regarded a general manifest lack of diligence which results in ignorance of criminal proceedings as itself being sufficient to support a conclusion that an accused had deliberately absented himself from trial (in the language of section 20(3) of the 2003 Act) or unequivocally waived his right to attend (in the language of the case law on article 6 of the Convention). Dworzecki, to which he referred (see para 40 above), is not authority for that proposition. Indeed, Sibgatullin makes clear at para 47 that “there can be no question of waiver by the mere fact that an individual could have avoided, by acting diligently, the situation that led to the impairment of his rights” (see para 34 above).
56. It follows that the Divisional Court in Zagrean v Romania [2016] EWHC 2786 (Admin) put the point too widely at para 81 in saying “a requested person will be taken to have deliberately absented himself from his trial where the fault was his own conduct in leading him to be unaware of the date and time of trial.
As such, defence practitioners should caution the Courts from adopting the simple test of ‘manifest lack of diligence’ and focus on the actual warning that was given to the RP of the consequences of not attending their trial, if any was given at all. Particular care should be taken with any submission that the knowledge of such consequences can be ‘inferred’ onto the RP, now that the Supreme Court has properly emphasised the requirement that the “defendant [is] to be warned in one way or another”.
Merticariu
Merticariu considered the third and final question, the entitlement to a retrial.
In this case it was accepted that Merticariu had not been present at his trial. There was some ambiguity as to whether he was deliberately absent or not, but since the requesting state had provided no details as to how Merticariu was given notice of the date and place of trial, the Court could not conclude that his absence was deliberate. In relation to the final question, the Romanian judicial authority did not fill in the relevant box on the extradition warrant to indicate that there was a right to a retrial, but instead communicated that:
the convicted person may request the reopening of the criminal proceedings, under the conditions of article 466 paragraphs 1-4 of the Code of Criminal Procedure.
The Supreme Court considered that Article 466 did not provide an entitlement to a retrial since it would only allow a retrial to take place following an assessment by the Romanian Court that the requested person was not deliberately absent and had not been legally represented.
The Supreme Court made it clear that the question for the court is not whether the requested person is entitled to apply for a retrial but whether they have a right to a retrial. In other words, to satisfy section 20(5) a Requested Person must have an unequivocal right to a retrial. If any application is required, it must be only procedural and the appeal must not be contingent on any preliminary decision.
The key paragraphs are as follows:
[51] We consider that the natural and ordinary meaning of the words in section 20(5) are plain. The judge must decide whether the requested person is “entitled” to a retrial or (on appeal) to a review amounting to a retrial. Section 20(5) does not require the judge to decide a different question, namely whether the requested person is entitled to apply for a retrial. Furthermore, the answer to the question in section 20(5) cannot be “perhaps” or “in certain circumstances” the appellant is entitled to a retrial or (on appeal) to a review amounting to a retrial: see Bohm v Romania [2011] EWHC 2671 (Admin), at para 5. Accordingly, an entitlement to a retrial cannot be contingent on the court in the requesting state making a factual finding that the requested person was not present at or was not deliberately absent from their trial. …
[52] We agree that a requested person may have the right to a retrial even if the domestic law of the requesting state requires him to take “procedural steps” to invoke the right. But if the entitlement to a retrial is contingent on a finding that the requested person was not deliberately absent from his trial, the proceedings leading to that finding would not naturally be referred to as a “procedural step”. Rather, those proceedings in the requesting state should be regarded as involving a decision on a substantive issue.
[63] …the appropriate judge cannot answer section 20(5) of the 2003 Act in the affirmative if the law of the requesting state confers a right to retrial which depends on a finding by a judicial authority in the requesting state as to whether the requested person was deliberately absent from his trial.
[64]… it is for the issuing judicial authority to provide information in the EAW in box 3.4 in point (d) or in response to a request for further information under Article 15. The executing judicial authority should not engage in a mini-trial as to whether on the facts and the law of the requesting stage a finding is theoretical or so remote that it can be discounted. The Amended Framework Decision is crafted to avoid that type of dispute.
The principle set out by the Supreme Court in Merticariu clearly applies to all extradition cases where the issue of a right to a retrial is live.
Whilst the decision in Merticariu sets down fundamental principles regarding the final question in s20, the substance of the decision is specific to the Romanian system.
The Supreme Court at [27] has reminded the Appropriate Judges at Westminster that it will
“not be appropriate for the requesting judicial authorities to be pressed for further information relating to the statements made in an EAW pursuant to article 4a save in cases of ambiguity, confusion or possibly in connection with an argument that the warrant is an abuse of process”.
This leaves open the possibility that a Romanian Judicial Authority could tick the relevant section of Box D on a warrant, and without further, a District Judge may be in the position where they are not required to seek further information.
However, where the warrant is a Romanian one, given the previous and lengthy reliance on Art 466, its continued use must be assumed. Following the Supreme Court’s negative treatment of this provision, when faced with a Romanian Warrant, defence practitioners may do well to explore whether any purported “right to retrial” is, in reality, an entitlement to apply for a retrial under art 466. Where that is the case, there are valid grounds to challenge the extradition under section 20(5).
Sophia Kerridge
Sophia represents individuals facing extradition. She is regularly instructed in extradition hearings at all stages, from first appearances in the Magistrates’ Court to substantive appeal hearings before the High Court. Sophia has significant experience of utilising expert evidence on a variety of topics such as prison conditions and complex points of law as part of extradition proceedings. She has published numerous articles on extradition issues including the impact of Brexit and other legal developments.
Sophia has a keen interest in international criminal and human rights cases. She has prosecuted criminal trials involving the use of evidence obtained abroad and that required defendants to be extradited as part of the proceedings. She has experience preparing cases brought before international courts.
Joe O'Leary
Joe regularly appears at Westminster Magistrates Court dealing with a variety of extradition matters. Joe has secured discharges for a number of clients at final hearings. Joe also appears at the High Court on appeal.
In addition to his extradition work, Joe regularly prosecutes and defends in the Crown Courts, and has particular experience in cases involving drugs, fraud and serious violence. He also has particular expertise in representing young people in the youth court, having represented individuals charged with robbery, drugs supply offences, violent crimes and crimes of a sexual nature. In addition to general crime Joe also has significant experience in driving matters, both at summary trial and on appeal. Joe also has an active practice in professional disciplinary and regulatory work.
