On 18 September 2026, Sophia Bidine attended the annual conference of the Defence Extradition Lawyers Forum (“DELF”), held in London.
The discussions focused on the challenges facing extradition proceedings, and more specifically:
- the changes introduced by the Crime and Policing Act 2026 to UK extradition procedure;
- the use of international human rights mechanisms as defence tools;
- the investigation of torture allegations and the resolution of cases outside contested hearings.
Section 246 of the Crime and Policing Act 2026, which came into force on 29 September 2026, rewrites sections 20 and 85 of the Extradition Act 2003. These provisions govern the surrender of persons convicted in their absence by a foreign court.
Two changes stand out. Until now, the UK court had to be satisfied that a person convicted in absentia would, following surrender, be entitled to a genuine retrial. The Supreme Court confirmed this in Merticariu.
The Act now permits surrender where the foreign court reserves the possibility of granting a retrial. The exception is where that court considers that the person deliberately absented himself or herself from trial. The foreign court may reach that conclusion even where the UK court has found otherwise. The UK court’s review appears to be reduced to taking note of the guarantees the requesting State claims to offer.
Surrender is also permitted where the person has expressly waived that right, or has failed to exercise it within the prescribed time limit after being informed of it. New section 20(7A), mirrored in section 85, further treats a conviction as having been handed down in the person’s presence where the person was represented by counsel but absent from the hearing. These rules apply only to persons arrested on or after 29 September 2026.
The reform weakens a cardinal safeguard of the right to a fair trial, enshrined in Article 6 of the European Convention of Human Rights. The risk is even more acute with regard to States which are not bound by the Convention.
French law remains more protective. In European Arrest Warrant matters, Article 695-22-1 of the Code of Criminal Procedure allows surrender to be refused where the person did not appear in person at trial. This ground for refusal is set aside only in exhaustively listed circumstances. These include where the person was informed personally and in good time of the date and place of the hearing, where he or she was defended by counsel whom he or she had instructed, or where he or she has access to a remedy allowing a fresh examination of the merits of the case in his or her presence. Outside the European Union, Article 696-4, 7° of the same Code precludes extradition where the requested person would be tried by a court that does not provide fundamental procedural guarantees and protection of the rights of the defence.
The rights of the defence are of particular importance in extradition matters. Review of the merits of the request by the court of the requested State is often the last line of defence against a surrender exposing the person to torture or to inhuman or degrading treatment.
Extradition being one of the firm’s areas of practice, dialogue with foreign colleagues on the conduct of such cases in their respective jurisdictions is a valuable source of insight.