The Supreme Court held that section 20(5) of the Extradition Act 2003 requires a requested person to have an entitlement to a retrial, not merely a right to apply for one. A retrial right contingent on a foreign court’s factual finding about deliberate absence is insufficient. The appellant’s extradition order was quashed and his discharge ordered.
Background
The appellant, Ionut-Bogdan Merticariu, was sought for surrender to Romania pursuant to a European Arrest Warrant (‘EAW’) issued on 7 May 2019, certified by the National Crime Agency on 8 July 2019, to serve a sentence imposed on 11 April 2019 for a burglary committed on 5 March 2016. The appellant was arrested on 25 September 2019. At the relevant time, the United Kingdom’s withdrawal from the European Union had not yet come into effect, meaning that the 2002 Council Framework Decision as amended by the 2009 Council Framework Decision (‘the Amended Framework Decision’) continued to apply through the Extradition Act 2003 (‘the 2003 Act’).
The EAW indicated that the appellant had not been present at his trial in Romania (box 2 of point (d) was ticked). However, the issuing judicial authority ticked box 3.2, asserting that the appellant, being aware of the scheduled trial, had instructed a lawyer to defend him. The information provided under box 4 stated merely that the appellant was represented by a court-appointed public defender. Box 3.4 — which would have confirmed the appellant’s right to a retrial — was not ticked. A legal pledge was added citing article 466 of the Romanian Code of Criminal Procedure, but it did not state that the appellant was entitled to a retrial. The accompanying Form A stated that the appellant had ‘the right to ask for retrial of the case’.
The District Judge found that the appellant had not been convicted in his presence (section 20(1)) and had not deliberately absented himself from his trial (section 20(3)). Despite the ambiguities in the EAW and the issuing judicial authority’s failure to confirm a right to retrial when asked, the District Judge concluded under section 20(5) that the appellant was entitled to a retrial, relying on the Divisional Court’s decision in BP v Romania and a passage from Cretu v Local Court of Suceava, Romania. On appeal, Chamberlain J acknowledged ‘considerable force’ in the appellant’s submissions but considered himself bound by judicial comity to follow BP v Romania. He certified questions of law for the Supreme Court.
The Issue(s)
The central issue was the proper construction of section 20(5) of the 2003 Act. Specifically:
Does section 20(5) require an entitlement to a retrial, or merely a right to apply for one?
The appellant submitted that section 20(5) requires there to be an entitlement to a retrial that is not dependent on any contingency other than purely procedural matters. The respondent submitted that it is sufficient for there to be a right to apply for a retrial, even if the success of that application is contingent on the court in the requesting state finding that the requested person was not deliberately absent from their trial.
The certified questions
Chamberlain J certified the following question:
In a case where the appropriate judge has decided the questions in section 20(1) and (3) of the Extradition Act 2003 in the negative, can the appropriate judge answer the question in section 20(5) in the affirmative if (a) the law of the requesting state confers a right to retrial which depends on a finding by a judicial authority of that state as to whether the requested person was deliberately absent from his trial; and (b) it is not possible to say that a finding of deliberate absence is ‘theoretical’ or ‘so remote that it can be discounted’? If so, in what circumstances?
The Court’s Reasoning
The plain meaning of section 20(5)
Lord Stephens and Lord Burnett (with whom Lord Hodge, Lord Sales and Lord Burrows agreed) held that the natural and ordinary meaning of section 20(5) was 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.
The Court emphasised that the answer to section 20(5) cannot be ‘perhaps’ or ‘in certain circumstances’:
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.
The Court drew a fundamental distinction between ‘a right to’ and ‘a right to ask for’ a retrial, holding that an entitlement to a retrial cannot be contingent on the court in the requesting state making a factual finding about the requested person’s absence from trial.
The significance of the amendments made by the FD 2009
The Court placed considerable weight on the deletion of article 5(1) of the FD 2002, which had referred to ‘an opportunity to apply for retrial’, and its replacement in article 4a(1)(d)(i) of the Amended Framework Decision with ‘right to a retrial’:
The deletion of article 5(1) meant that the phrase ‘an opportunity to apply for retrial’ is no longer part of the Amended Framework Decision. Rather it has been replaced by ‘right to a retrial’ in article 4a(1)(d)(i). For the purposes of this appeal, we consider this deletion, and its replacement with the phrase ‘right to a retrial’, to be a highly significant amendment to the FD 2002. There is a fundamental difference between ‘a right to’ and ‘a right to ask for’, a retrial.
Distinguishing procedural steps from substantive contingencies
The Court accepted that a requested person may have a right to a retrial even if procedural steps are required to invoke it. However, a requirement to obtain a factual finding that the person was not deliberately absent is not a procedural step:
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.
Rejection of the respondent’s arguments
The respondent argued that section 20(5) should be construed in conformity with the earlier article 5(1) of the FD 2002 (which referred to a right to apply for retrial), since section 20(5) was not amended after the FD 2009. The Court rejected this, noting that the UK had always gone further than article 5(1) required, demanding an assurance of a right to a retrial rather than a right to apply for one. It was therefore unnecessary to amend section 20(5) after the FD 2009 as the enhanced protection was already contained in it.
The respondent also argued that respect for the independence of courts in the requesting state supported a construction limited to a right to apply. The Court rejected this, noting that the Amended Framework Decision itself is structured on the basis that ticking box 3.4 obliges the requesting state to begin a retrial, and the same principle applies where further information is provided under article 15.
Consistency with Article 6 of the European Convention on Human Rights
The Court held that its construction was consistent with article 6 ECHR, citing the Grand Chamber in Sejdovic v Italy:
… the refusal to reopen proceedings conducted in the accused’s absence, without any indication that the accused has waived his or her right to be present during the trial, has been found to be a ‘flagrant denial of justice’ rendering the proceedings ‘manifestly contrary to the provisions of Article 6 or the principles embodied therein’….
Overruling of prior authority
The Court expressly held that the Divisional Court in BP v Romania had incorrectly construed section 20(5), and that Zeqaj v Albania had incorrectly construed the equivalent provision in section 85(5) of the 2003 Act.
Application to the present case
The Court found that the issuing judicial authority had not ticked box 3.4, had not stated in the legal pledge that the appellant was entitled to a retrial, and when specifically asked had only confirmed the appellant could ‘request the reopening of the criminal proceedings’. There was therefore no evidence that the appellant would be entitled to a retrial upon surrender:
Accordingly, we consider that there is no evidence from the issuing judicial authority in the EAW or in the further information that the appellant would be entitled to a retrial on his surrender to Romania. Accordingly, the district judge ought to have answered the question in section 20(5) in the negative and should have ordered the appellant’s discharge pursuant to section 20(7) of the 2003 Act.
Practical Significance
This decision clarifies the law on extradition to conviction-based EAW cases where the requested person was tried in absentia. The Supreme Court has established that section 20(5) of the 2003 Act requires the executing judicial authority to be satisfied that the person has a guaranteed right to a retrial — not merely a right to apply for one whose success depends on a substantive factual determination by the requesting state’s courts. This overrules the line of Divisional Court authority (BP v Romania and Zeqaj v Albania) that had treated a contingent right to apply as sufficient.
The decision reinforces the importance of the information provided by the issuing judicial authority in the EAW itself. If box 3.4 in point (d) is not ticked, the executing judicial authority is not obliged to order extradition and must satisfy itself through the information provided that there is a genuine entitlement to a retrial. The Court also cautioned against engaging in ‘mini trials’ about the requesting state’s law and directed that the executing judicial authority should rely on the statements of the issuing judicial authority. Issuing judicial authorities must provide clear information confirming a right to retrial, and vague references to a right to ‘ask for’ or ‘request’ a retrial will not suffice.
Verdict: The appeal was allowed. The Supreme Court ordered the appellant’s discharge and quashed the extradition order made by the District Judge, pursuant to section 33(3)(a) and (b) of the Extradition Act 2003.
Source: Merticariu v Judecatoria Arad, Romania [2024] UKSC 10
