Contribution
My Lords, Amendment 429ZA seeks to leave out Clause 212. I am grateful to the noble Baroness, Lady Brinton, and the noble Lord, Lord Davies of Gower, for adding their names to the amendment. Clause 212 addresses situations where a person has been convicted in their absence in a foreign court and their extradition is sought by the country in question. Under Section 20 of the Extradition Act 2003, the key question for our courts in deciding whether to grant extradition is whether the person “deliberately absented” themselves from their original trial, waived their right to be present at that trial or was properly represented in their absence by a lawyer, meaning that a retrial in the other country is unnecessary. In those circumstances, conviction in absence does not by itself prevent extradition. However, if none of those questions can be answered in the affirmative by our courts, extradition is refused unless the person has an absolute and unconditional right to a retrial after being extradited.
In a case called Merticariu in 2024, the Supreme Court confirmed that these key questions on whether the person has a right to a retrial in the country in question must be decided by our courts, not foreign courts. Therefore, if our courts have decided that the person did not deliberately absent themselves or waive their right to be present at the original trial or was not properly represented, their entitlement to a retrial must not be dependent on any contingency to be resolved by the foreign court, such as reopening any of those questions.
The Supreme Court said, in paragraph 54, that
“the requested person is entitled to a retrial rather than entitled to apply for a retrial is consistent with the right of a criminal defendant to be present at trial guaranteed by article 6 of the Convention”.
Construing Section 20 of the 2003 Act as requiring our courts to decide whether there is a right to a retrial is consistent with the UK’s obligation to avoid a flagrant denial of justice that would render the proceedings manifestly contrary to the provisions of Article 6 of the ECHR.
In his letter to me and the noble Baroness, Lady Brinton, which arrived earlier today, the Minister states the exact opposite. He says that Clause 212 ensures that, where our courts have found that the person did not deliberately absent themselves,
“extradition can proceed if the person has the right to request a retrial on return, subject to the domestic court finding they did not deliberately absent themselves, rather than requiring the requesting state to provide an unconditional right to a retrial”.
So the Supreme Court expressly said it must be an unconditional right and the Minister says it can be a conditional right. That can mean only that the Home Office has concluded that the Supreme Court got it wrong on the potential for a breach of Article 6—which is, with respect, “courageous”, as Sir Humphrey would say.
In fact, it is doubly courageous, since the Supreme Court also confirmed in paragraph 53 of its ruling that what is now the trade and co-operation agreement, previously the framework directive, requires a right to a retrial, not a mere opportunity to apply for a retrial.
The upshot is that, under Clause 212, our courts may have decided that the person did not deliberately absent themselves, for example because they had not been informed of the proceedings, as was the case in Merticariu, and are therefore entitled to a retrial. But the foreign court could then take a different view and deny the person a retrial on their return. Similarly, Clause 212 would provide that, if the person had been legally represented in their absence, they are deemed to have been present when convicted, even if they had had no contact with the lawyer and had given them no instructions—again, as happened in Merticariu. The person would again be denied a retrial.
Clause 212 does not say that “legally represented” has to mean mandated or instructed by the person facing extradition: it refers simply to being legally represented, and in Merticariu, the Romanian authorities appointed a public defender and therefore considered that he had been legally represented, even though he had had no contact with that public defender.
The Home Office has said that there are other protections in the 2003 Act, such as a general human rights assessment, under Section 21, to prevent any injustice. But this argument seems to be an acceptance that Clause 212 is defective but can be remedied later, and it would leave Clause 212 on the statute book even though it is plainly incompatible with Article 6.
In conclusion, Clause 212 is incompatible with our highest court’s ruling that the current law is necessary to comply with Article 6. It should be our courts having the final decision on whether a person has a right to a retrial, to avoid the “flagrant denial of justice” that the Supreme Court referred to. If our courts decide that the person was convicted in their absence through no fault of their own, they will have had no opportunity to defend themselves. In those circumstances, the foreign country must guarantee an absolute and unconditional right to a retrial. If it cannot do so, the person should not be extradited. This is what the 2003 Act currently requires, to ensure adequate protection of Article 6 rights. Clause 212 would remove that protection: therefore, the clause itself must be removed. I beg to move.