With many thanks to Mary Westcott for her case report below:
On 6 March 2024 the Supreme Court unanimously allowed both appeals in Bertino and Merticariu (heard 28 and 29 November 2023) providing new guidance about how Courts should approach S20 of the Extradition Act 2003.
Both appeals were allowed, quashing the original extradition orders made in 2020 and 2021.
The decisions are available online
In Bertino the Court overturned findings of deliberate absence from trial (S20(3)), moving away from the diluted concept applied in Zagrean v Romania [2016] EWHC 2786 (Admin) (Sharp LJ and Cranston J) and subsequent decisions invoking breach of an address requirement, without more, as a manifest lack of diligence. Waiver of a right to be present at trial must be established in an unequivocal manner, so the accused must be shown to have appreciated the consequences of his behaviour which requires adequate warning of the risk of proceeding in absence.
In Merticariu, the Court interpreted S20(5) (and S85) as conferring a right to a retrial, not merely to apply for a retrial equating to “perhaps or maybe”. A proper right to a retrial should not be contingent on a post-surrender JA’s decision about deliberate absence (or other “substantive contingencies”). This overturns many decisions, including Zeqaj v Albania [2013] EWHC 261 (Admin) and BP v Romania [2015] EWHC 3417 (Admin).
Following Popoviciu [2023] UKSC 39 last year, there are additional points about process and evidence that might be extracted and applied in due course. Further, in all three cases the Court’s reasoning refers back to the central protections of Article 6 ECHR.
Both cases were underpinned by the EAW Framework Decision, but as the Court noted TCA 2020 “which in large part reflects the EAW system”.
DELF are holding a seminar for members only, at 6pm on 23 April 2024 at Doughty Street Chambers. Junior Counsel instructed in Bertino and Merticariu will discuss the consequences of the Supreme Court decisions handed down on 6 March 2024 for the correct approach to deliberate absence and right of retrial. Please email the DELF Administrator if you would like to attend.
