The “in absentia” controversy and the regression of extradition protections in UK courts

Convictions in absentia overseas that are pursued via extradition requests in the UK create difficulty for UK judges. This has been further complicated by the Crime and Policing Act 2026, which will result in a regression of safeguards for Requested Persons in the UK.

What is an in absentia conviction?

An in absentia conviction occurs when a person is convicted of a criminal offence without being physically present at their trial. Such convictions are recognised in many jurisdictions but can raise concerns about fairness, particularly where the individual was unaware of the proceedings or had no meaningful opportunity to defend themselves.

What was the UK position before?

Prior to the introduction of the Act, which received Royal Assent on 29 April 2026 and is due to come into effect on 29 June 2026, Requested Persons subject to extradition proceedings in the UK whose extradition was sought to serve a conviction in another jurisdiction were protected by Section 20 (for Category 1 territories (EU member states and Gibraltar)) and Section 85 (for Category 2 territories (all other countries globally)). These provisions required the court to consider whether the person was convicted in-person or in absentia, and whether the person deliberately absented themselves from proceedings. If they did not, the judge then went on to determine whether the person would have a right to a retrial if extradited. If neither of these tests were satisfied, a discharge had to be ordered.

This position was confirmed in the UK Supreme Court case of Merticariu v Romania [2024] UKSC 10, which established that those convicted in absentia would be protected from extradition if the Requesting State could not guarantee an absolute and unconditional right to a retrial. This was an important safeguard against a potential flagrant denial of justice contrary to Article 6 ECHR, as reinforced by the Supreme Court’s decision.

However, the new Act strips away this judicial oversight. Section 246 of the Crime and Policing Act 2026 amends Section 85 and Section 20 in two major ways: extradition can take place even if the Requesting State cannot explicitly guarantee the right to a retrial, as this is now at the Requesting State’s discretion. Further, the Act states that if the Requested Person had legal representation at their original trial, even if they had not instructed said lawyer or were even aware of the proceedings, they will be treated as if they were present.

What does this mean for individuals facing extradition?

The changes introduced by the Crime and Policing Act 2026 are likely to have practical consequences for individuals facing extradition requests based on overseas convictions.

In particular:

• More extradition requests may proceed where retrial rights are uncertain;
• UK courts may have less ability to scrutinise foreign criminal procedures;
• Individuals convicted without knowledge of proceedings may face greater challenges resisting extradition and
• Applications to the European Court of Human Rights may increase.

The Act will no doubt be the subject of future court challenges, though these challenges will not be suspensive of extradition if ordered. This will invariably result in an increase in the number of ECtHR applications seeking an emergency injunction against extradition.

Gherson insight

From our perspective, the significance of the 2026 reforms extends beyond procedural changes. They represent a shift in the balance between international cooperation and individual procedural protections. Whether the courts ultimately interpret these provisions narrowly, or whether challenges before the European Court of Human Rights reshape their application, remains to be seen. What is clear is that individuals facing extradition requests based on overseas convictions will need specialist advice at a much earlier stage.

How can Gherson Assist

Gherson has significant experience in defending contested extradition proceedings in complex and wide-ranging cases. If you have any questions about a current or potential extradition case, please do not hesitate to contact us for advice or send us an e-mail.

Frequently Asked Questions

Can the UK extradite someone convicted in their absence?

Potentially, yes. Provided that the Requesting State can prove that the statutory tests have been complied with, the court can order extradition even if the Requested Person was convicted in their absence.

Does the Crime and Policing Act 2026 reduce extradition protections?

Yes, the Crime and Policing Act 2026 significantly reduces certain extradition protections, particularly for individuals convicted in absentia.

Can a lawyer appearing at trial count as attendance?

Under the new legislation, legal representation may, in some circumstances, be treated as equivalent to attendance even where the Requested Person did not personally participate.

If you would like to speak to us in respect of any of the issues raised in this blog or about your specific circumstances, do not hesitate to contact us for advice, send us an e-mail, or alternatively, follow us on X, Facebook, or LinkedIn to stay-up-to-date.

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please do not hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

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