The respondent was convicted of murder by a court in Portugal. The appellant seeks his extradition. District Judge McGarva (“the judge”) refused to order the respondent’s extradition, and instead discharged him, because the respondent was convicted in his absence and, the judge held, he had not been deliberately absent and he did not have a right to a retrial. The appellant appeals. It says that the judge was wrong, that the respondent does have a right to a retrial, and the judge should have ordered his extradition.

On 23 October 2010, in the county of Loures, Portugal, Fabio Silvestre was attacked and killed. In about February 2011, the appellant (who was then aged 18) attended a police station and was questioned about the offence. He was represented by a lawyer. He denied the offence. At the end of the questioning, he signed a form which, he says, he did not read. The form required him to give an address for service of any summons, making it clear that any notices would be sent to that address and that he must inform the authorities of any change of address. He gave his mother’s address. He says he did not know that he had to notify the authorities of any change of address. He spent two years in the army in Portugal. He then travelled to and from the United Kingdom, before coming to the United Kingdom to live permanently in December 2014.

A summons was sent to the address that the respondent had given (so his mother’s address) on 16 February 2016. The summons required the respondent to attend a trial. It indicated that if he did not attend then he might be tried in his absence. At this point, the respondent was in the United Kingdom. He says that his mother did not tell him about the summons. The respondent did not therefore attend his trial and, on his account, he was wholly unaware of it. He was represented by a public defender who was appointed to represent his interests (but who was not instructed by him). He was convicted of qualified homicide (which is akin to murder under the law of England and Wales). In 2021, he was sentenced to 14 years’ imprisonment. That sentence only becomes a final decision at the point the respondent is formally served with the decision and notified of his right to appeal.

The respondent opposed his extradition on the grounds that the warrant did not contain sufficient details to comply with section 2 of the 2003 Act; that he should be discharged under section 14 of the 2003 Act because the passage of time rendered extradition unjust or oppressive; and that he should be discharged under section 21(2) of the 2003 Act because extradition is not compatible with the respondent’s rights under article 8 of the European Convention on Human Rights (“the Convention”). The judge rejected each of these grounds of opposition. The respondent has no right to cross-appeal: Suceava District Court, Romania v Gurau [2023] EWHC 439 (Admin) [2023] 1 WLR 2813. Accordingly, for the purposes of this appeal, no further issue arises in respect of the judge’s decision on those aspects of the case.

The respondent also opposed his extradition on the ground that he had not been convicted in his presence, that he had not been deliberately absent, and that he did not have a right to a retrial or (on appeal) to a review amounting to a retrial, and that he should therefore be discharged under section 20(7) of the 2003 Act.

On this issue, the appellant was asked to provide further information including, specifically, whether the respondent had “a right to receive a retrial OR an appeal with ‘the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed.’” The appellant responded:

In response to further questions about the respondent’s appeal rights, the appellant provided the following further information:

Expert evidence of a Portuguese lawyer, Diana Silva Pereira was before the judge. She explained the respondent’s appeal right as follows:

The judge found that the respondent had not been convicted in his presence, and that he had not been deliberately absent. There is no appeal against those decisions. The judge also found that the respondent did not have a right to a retrial or (on appeal) to a review amounting to a retrial. For that reason, the judge discharged the respondent under section 20(7) of the 2003 Act.

The 2003 Act prescribes a step-by-step approach for the court to determine whether to make an extradition order or whether, instead, to order the discharge of the requested person. The judge must decide whether the offence specified in the warrant is an extradition offence: section 10(2). If so, the judge must then decide whether the person’s extradition is barred by reason of a specified ground: section 10(4) and section 11(1). If not, and if the requested person is alleged to be unlawfully at large after conviction of the extradition offence, the judge must proceed under section 20.

Section 20 of the 2003 Act states:

The burden was on the appellant to establish its case on the questions in section 20(1), (3) and (5) of the 2003 Act to the criminal standard: section 206 of the 2003 Act, Cretu v Romania [2016] EWHC 353 (Admin) [2016] 1 WLR 3344 per Burnett LJ at [34(v)], Merticariu v Judecatoria Arad Romania [2024] UKSC 10 [2024] 1 WLR 1506 per Lord Stephens and Lord Burnett at [11].

Section 20 reflects article 4a of the (updated) Framework Decision on the European arrest warrant (Council Framework Decision 2002/584/JHA as amended by Decision 2009/299/JHA). Article 4a provides that the executing judicial authority may refuse to execute a European arrest warrant if the person did not appear in person, unless certain exceptions apply. One exception is where the requested person would be “expressly informed of his or her right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed.” Following the United Kingdom’s withdrawal from the European Union, the applicable international instrument is now the EU-UK Trade and Cooperation Agreement 2020. Article 601(1)(i)(iv)(A) of that agreement is to the same effect as article 4a of the (updated) Framework Decision.

The question of whether a person is entitled to a retrial within the meaning of section 20(5) of the 2003 Act must be determined in accordance with the law of the requesting state. That state must provide the necessary information in order to determine whether the person is entitled to a retrial. A person may be entitled to a retrial even if they have to take certain procedural steps (such as completing a form or making an application) to secure that entitlement. However, an entitlement to a retrial is different from, and more than, an entitlement to apply for a retrial unless the completion of the form or the making of the application automatically leads to a retrial. If a retrial is dependent on a court first making a substantive decision, or exercising a discretionary judgement, then that does not amount to an entitlement to a retrial: Merticariu per Lord Stephens and Lord Burnett at [51] – [54].

There is a right of appeal against a judge’s decision to discharge the requested person: section 28(1) of the 2003 Act. Such an appeal may be allowed if the judge ought to have decided differently the decision on the question which resulted in the person’s discharge, such that the judge would not have been required to discharge the person: section 29(3). If the appeal is allowed then the order discharging the person must be quashed, the case remitted to the judge, and the judge directed to proceed as he would have been required to do if he had decided the relevant question differently: section 29(5).

The judge found that the respondent was a credible witness. The judge accepted that the respondent had not read the form that he signed in 2011, that he had not appreciated that he was obliged to notify any change of address and that he believed that the matter was over given that he had been in the army in Portugal for 2 years, was available to be contacted, and that no further steps had been taken. The judge also accepted that the respondent did not come to England to avoid prosecution.

That all meant that the critical issue under section 20 was whether the respondent was entitled to a retrial. The judge said that the test was whether “the right to retrial is unequivocal and does not depend on a certain finding of fact.” The judge considered that test was clearly not met. A retrial must permit the respondent to call evidence: section 20(8)(b). Under Portuguese law, however, the respondent would only be permitted to call evidence in exceptional circumstances, so the right to do so was contingent on the exercise of a judicial discretion. Extradition was, accordingly, barred by section 20 of the 2003 Act. The judge therefore ordered the respondent’s discharge.

Joel Smith KC, for the appellant, submits that the 2003 Act should be read consistently with the United Kingdom’s international obligations under the Trade and Cooperation Agreement: Assange v Swedish Prosecution Authority (Nos 1 and 2) [2012] UKSC 22 [2012] 2 AC 471 per Lord Phillips at [10], per Lord Brown at [98], per Lord Kerr at [112] and per Lord Mance at [217]. The underlying purpose of that agreement, and of section 20 of the 2003 Act, is to safeguard the right to a fair trial that is enshrined in article 6 of the Convention. Section 20 should thus be construed in a manner that is consistent with article 6. In a domestic criminal case, the right to appeal against conviction to the Court of Appeal (Criminal Division) complies with article 6 of the Convention even though such an appeal may only succeed if the conviction is “unsafe”, and even though fresh evidence may only be admitted in the narrow circumstances prescribed by section 23(1) of the Criminal Appeals Act 1968: Jones v United Kingdom (2003) 37 EHRR CD 269. Section 20(5) gives rise to an “entitlement” to a hearing. It says nothing about the content of that hearing. That is prescribed by section 20(8) which identifies the “rights” that must be afforded at that hearing. The difference in language (“entitlement” to a hearing, and the “rights” to be afforded at the hearing) is significant. The rights under section 20(8) may be qualified, whereas the entitlement under section 20(5) is unfettered. Thus, there is no (unqualified) entitlement to call evidence, only a (qualified) right to do so. This reflects the Strasbourg caselaw under article 6, including the decision in Jones. It also reflects the (permissive, not mandatory) language of article 4a of the updated Framework Decision and article 601(1)(i)(iv)(A) of the Trade and Cooperation Agreement. In the present case, the respondent is entitled to a review that amounts to a retrial because he is entitled to an appeal hearing at which he can challenge the merits of the charge and ask the court to admit new evidence. As Jones shows, such a procedure is compatible with article 6 of the Convention.

Helen Malcolm KC, for the respondent, submits that the judge was correct to hold that the appeal hearing to which the respondent is entitled does not amount to a retrial within the meaning of section 20(5) because the respondent would not be permitted to call evidence except in exceptional circumstances. She says that section 20(8) is explanatory and clarificatory of the requirements for a retrial (or a review amounting to a retrial) in section 20(5), and those requirements include the right to call evidence. She says there is no difference in law between the meaning of “entitlement” in section 20(5) and “right” in section 20(8). In both cases the “entitlement” / “right” is not subject to any substantive qualification. It follows that to amount to a retrial there must be a right to call evidence that is not subject to any substantive qualification. The decision in Jones does not mandate a different outcome. In that case the defendant was well aware of his obligation to attend trial, he deliberately failed to attend, and he did not seek to call evidence on the subsequent appeal. If, in Jones, the defendant had been tried without his knowledge and if he had no right to a full rehearing, it is inconceivable that the courts would have found his conviction to be safe and compatible with article 6.

There is no dispute about the underlying legal framework in Portugal. The respondent is entitled to appeal. That entitlement is not subject to any substantive qualification. The appeal amounts to a review of the hearing of the first instance court. It does not ordinarily involve oral evidence. The respondent does not have an unqualified right to call oral evidence. In order for the respondent to be entitled to adduce evidence, it must first be demonstrated that the decision of the first instance court was defective in one of the ways set out in article 410. If there is no such defect, then the appeal will be dismissed, even if the respondent has irrebuttable evidence as to his innocence (for example, a cast-iron alibi).

The issue is whether this appeal right comprises “a review amounting to a retrial” within the meaning of section 20(5).

As a matter of the ordinary use of language, a retrial is a further trial, with the same procedural rights, including as to the calling of evidence, as applied at the original trial. There is nothing in section 20(5) to suggest the word is used in any other sense. The phrase “review amounting to a retrial” contemplates that an appellate review may, or may not, amount to a retrial depending on the nature of that review. That, again, is consistent with the ordinary use of language and it is also consistent with the fact that there are different types of appeal. In some instances, an appellate review amounts to a retrial. In some, it does not. Thus, under the Civil Procedure Rules, an appeal is ordinarily limited to a review of the decision of the lower court (rather than a re-hearing): CPR 52.21(1). That general rule is, however, subject to exceptions where either a practice direction makes different provision, or the court considers it would be in the interests of justice to hold a re-hearing. The two different formulations in section 20(5) (“retrial” and “review amounting to a retrial”) do not suggest any substantive difference in the procedural rights that are available to a defendant, including as to the calling of evidence. Rather, the twin formulation accommodates different mechanisms for affording a retrial that are available in different jurisdictions. Thus, in some countries the retrial may be conducted as part of the appeal, with the appellate court performing the function of the first instance court. In others, there may be an automatic right to a retrial before a first instance court. In both cases what must be afforded is, in substance, a retrial. I accept Ms Malcolm’s submission that the effective equivalence between a retrial, and a review amounting to a retrial, is implicit in the language and structure of section 20(8).

Section 20(8) does not suggest that the words in section 20(5) are intended to bear anything other than their ordinary meaning. I agree with Ms Malcolm that section 20(8) is explanatory and clarificatory of section 20(5). It explicitly requires that which is, anyway, implicit in section 20(5), namely that an entitlement to a retrial necessarily involves a right to call evidence. Nothing in the language of section 20(5) and 20(8) indicates that the right to call evidence should be subject to any substantive qualification beyond the requirements that would apply before evidence could be called at the original trial (for example that evidence is relevant, or that any procedural requirements have been observed).

I accept Mr Smith’s submission that section 20 reflects the requirements of the Framework Decision and, now, the Trade and Cooperation Agreement, and that it is intended to ensure compatibility with article 6 of the Convention. The natural interpretation of section 20 is, however, compatible with the Framework Decision and the Trade and Cooperation Agreement and with article 6 of the Convention.

So far as concerns the Framework Decision and the Trade and Cooperation Agreement, as the Supreme Court in Merticariu pointed out, article 4a of the updated Framework Decision replaced the previous requirement of “an opportunity to apply for a retrial” with a “right to a retrial”: [53]. As Merticariu also shows, the unqualified nature of the entitlement to a retrial is consistent with this change. So too is the unqualified nature of the right to adduce evidence at the retrial. Mr Smith points out that article 4a of the (updated) Framework Decision, and article 601(i)(iv) the Trade and Cooperation Agreement refer to a procedure which “allows” the merits of the case, including fresh evidence, to be re-examined. He submits this implies that the right to call fresh evidence might be subject to substantive limitations. As a matter of the language, read in isolation, of that part of the updated Framework Decision and the Trade and Cooperation Agreement, that submission may be tenable, but that is not a sufficient basis for departing from the clear words of section 20 of the 2003 Act.

So far as article 6 is concerned, that requires that, in the determination of any criminal charge against the respondent, he is entitled to a fair hearing: article 6(1). A fair hearing includes a right to be heard. The respondent has not yet been afforded that right, because he was unaware of his trial. It also includes the right to examine, or have examined, witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him: article 6(3)(d). Again, the respondent has not yet been afforded that right, and the appeal to which he will be entitled will not afford him that right (because it is only in exceptional cases that oral evidence will be permitted). Again, as the Supreme Court in Merticariu observed, the requirement for a retrial (in this context, and in this sense) is consistent with the right of a criminal defendant to be present at trial guaranteed by article 6: [54].

It is incompatible with article 6 that the respondent’s right to a retrial in these circumstances (that is, where the defendant was involuntarily absent from the original trial) is subject to a requirement for him first to show some legal defect in the original trial. I was not shown any authority on precisely these facts, but some support for that view can be derived from the decisions of the European Court of Human Rights in Sanader v Croatia (2015) (App No 66408/12) and Topi v Albania (2018) (App. No. 14816/08).

In Sanader v Croatia (2015) (App No 66408/12) the applicant had been convicted in his absence. His entitlement to a retrial was dependent on him first “submitting new facts and evidence of such strength and significance that they could at the outset convince the court that he should be acquitted or convicted”. The court considered that such a demand was disproportionate to “the essential requirement of Article 6 that a defendant should be given an opportunity to appear at the trial and have a hearing where he could challenge the evidence against him… an opportunity which the applicant never had.” Likewise, on the judge’s unchallenged findings, the respondent has never had that opportunity, which is his right under article 6. In one sense, he is in a worse position than the applicant in Sanader because it would not be enough to submit evidence to demonstrate that he should be acquitted; he would first have to show some defect in the original trial.

In Topi v Albania (2018) (App. No. 14816/08) the court, at [65], reiterated its findings in earlier cases that where an applicant has been convicted of a criminal offence in breach of article 6, the most appropriate form of redress is, in principle, a new trial or a reopening of the proceedings. That observation was made in the context of a discussion about what was required for “just satisfaction” under article 41 of the Convention, but it is consistent with the approach taken by section 20 of ensuring that a person who has been convicted in their involuntary absence has an unqualified right to a new trial.

In Jones the court found no breach of article 6 even though the entitlement to call fresh evidence was restricted. There had been a debate as to whether the applicant had waived his article 6 rights given the legal uncertainty, at the time of those proceedings, over whether it was open to a court to try a defendant in his absence. The fact is, however, that the applicant was deliberately absent from his trial. For that reason, in section 20 terms, the requirement for a retrial would not arise. Jones is not authority to support a proposition that a person who has been convicted in their involuntary absence can be denied a right to a retrial, including a (unqualified) right to adduce any evidence that the defendant would have been entitled to adduce at the original trial.

The judge was right to find that the respondent was not entitled to a retrial. It follows that section 20(5) of the 2003 Act required the judge to discharge the respondent. I therefore dismiss the appeal.