Contribution
My Lords, my late friend Lord Wallace of Tankerness had originally laid this proposal that Clause 195 should not stand part. I had signed it to support him because of my interests in human rights. His untimely death last week means that I am now leading on something that he, as an excellent lawyer, really understood and cared about. We shall in this debate, when we get into the detail, miss his incisive legal mind, combined with a passion for fairness and the rule of law. We miss him so much already. I am not a lawyer, but I will do what I can. I thank the Defence Extradition Lawyers Forum, or DELF, for its help and advice in the last few days, as well as its excellent technical briefing, from which I shall quote.
The core of asking that Clause 195 not stand part is straightforward. It would remove the right for a retrial following a conviction in absentia where the person convicted is deemed to have been present, even if there has been no contact between that person and their court-approved lawyer. As ever, there is more in the detail. Clause 195 proposes to amend Sections 20 and 85 of the Extradition Act, governing extradition following convictions in absentia. Following a stakeholder symposium convened in January, DELF identified material inaccuracies in the Government’s stated justification for the clause. Unfortunately, there are consequences as a result of these inaccuracies that will have serious implications for individuals facing extradition in future.
In the Government’s justification for Clause 195, they said that the proposed amendments
“ensure compatibility between UK domestic legislation and the UK-EU Trade and Cooperation Agreement”.
Article 601(1)(i) of the TCA, which governs convictions in absentia, already aligns with Section 20 of the Extradition Act 2003. Those safeguards, grounded in fundamental rights, reflect the carefully calibrated EU extradition framework, strengthened in 2009 to enhance protections for convictions in absentia. It sought to promote legal certainty and mutual recognition while respecting differing national legal systems. The problem is that Clause 195 risks making UK legislation inconsistent with the TCA in two material respects, thereby undermining the reforms advanced by the UK in 2008-09.
First, Article 601(1)(i)(iii) of the TCA permits refusal of extradition where a person did not deliberately absent themselves for a trial in absentia unless they have a right
“to a retrial or appeal … which allows the merits of the case … to be re-examined”.
That standard is reflected in Section 20 of the Extradition Act, as interpreted by the Supreme Court, but Clause 195 would dilute this safeguard by reducing it to a mere “right to apply” for a retrial, thus weakening protections previously secured across Europe.
Secondly, Article 601(1)(i)(ii) of the TCA deems a person present at the trial only where they have
“given a mandate to a lawyer … to defend him or her at the trial, and was indeed defended by that lawyer at the trial”.
However, new subsection (7A) in Clause 195 will weaken this protection, treating a person as present solely by virtue of their legal representation, even where there has been no contact or instruction between lawyer and client.
There is further concern over the Government’s inaccurate statement that the
“interpretation … changed as a result of … Bertino and Merticariu”.
The Supreme Court did not create new law by distinguishing between a right to retrial and a mere right to apply for one. Rather, it affirmed the settled meaning of “entitled”, endorsing established authority, which made it clear that entitlement does not mean “perhaps” or “in certain circumstances”. In doing so, the court in that case overturned the conflicting decision in BP v Romania 2015, which had erroneously treated a discretionary right to apply for a retrial as sufficient, having misapplied case law on procedural requirements that do not undermine a genuine entitlement.