Changes to retrial rules in extradition cases from September 2026 – George Hepburne Scott
New provisions affecting extradition after a conviction in the requested person’s absence are due to take effect on 29 September 2026. Section 246 of the Crime and Policing Act 2026 amends section 20 of the Extradition Act 2003, which concerns Part 1 cases, and section 85, which concerns Part 2 cases.
The changes affect when a UK judge may proceed to the next stage of an extradition hearing in light of the person’s entitlement to a retrial or equivalent review in the requesting state. They also address cases in which the person was represented by a lawyer but did not attend the trial in person.
Conditional retrial rights and representation
Under the new wording, the court may proceed where a retrial or review amounting to a retrial would be available unless a court in the requesting territory decides that the person deliberately absented themselves. The amended provisions also address an express waiver of such a right and a right that was not exercised within the permitted period after the person was informed of it.
A further amendment treats a person convicted at a trial at which they were legally represented, although not present in person, as having been convicted in their presence for this part of the statutory test. The circumstances of the trial, the nature of the representation and the remedy available under foreign law remain matters for careful examination.
Which cases are affected
The commencement regulations bring section 246 into force on 29 September 2026, subject to savings for specified earlier arrests. The new section 20 provisions do not apply to an extradition hearing arising from an arrest under section 3 or 5 before that date. The corresponding saving for section 85 applies to arrests under section 71, 73 or 74A before that date. The hearing date alone does not determine which version of the law applies.
Why the detail matters
A conviction in absence can involve disputed notice of the hearing, an argument about deliberate absence, or uncertainty over the remedy available after surrender. The warrant and any further information must be read against the history of the foreign proceedings. The amendments do not resolve those factual questions or dispense with other applicable safeguards in the Extradition Act 2003.
Further analysis
George Hepburne-Scott is Head of Extradition at Church Court Chambers. He has published a fuller analysis of the changes, including the saving for earlier arrests and a recent section 20 appeal, on UK Extradition Lawyer, here.
