Present in Law, Absent in Reality – How Parliament Deemed You Were at a Trial You Never Knew Existed

Fatima Jama provides a critical analysis of section 246 of the Crime and Policing Act 2026 and its broader implications.

---

Introduction

Some landmark laws never make the news but resonate for decades. They arrive not as a thunderclap but as a clause, buried deep within a sweeping piece of legislation, debated exhaustively, and dispatched with minimal public scrutiny. Section 246 of the Crime and Policing Act 2026 (“section 246”) is precisely that. The Crime and Policing Act 2026 (“the Act”) received Royal Assent on 29 April 2026. The full text was published on 08 May 2026. The Act is a substantial and comprehensive legislative overhaul. Hailed by the government as one of the biggest revamps of crime-fighting powers in a generation, it introduces over 70 measures aimed to tackle low-level offending, serious crime, and corporate misconduct.

To the casual observer, section 246 might read as a nominal neatening of extradition law. In reality, it represents a significant and worrying push back of the protections afforded to individuals who find themselves at the mercy of foreign justice systems, systems that may have tried them, convicted them, and sentenced them to imprisonment without their ever knowing a trial had taken place. What makes section 246 so remarkable is not merely what it does, but what it undoes: a Supreme Court judgment handed down just two years ago that was itself a firm and principled statement about what the right to a fair trial actually means in practice.

The Law Before Section 246

To understand the gravity of the change, it is necessary to start with the legal position that existed before section 246 arrived to dismantle it in respect of extradition after trial in absence.

Under subsection (5) of both section 20 (governing Category 1 territories, predominantly European Union members under the Trade and Cooperation Agreement) and section 85 (governing Category 2 territories, such as the United States and Commonwealth nations) of the Extradition Act 2003 (“EA 2003”), an extradition judge was required to conduct a sequential enquiry. First, was the person present at their trial? If not, did they deliberately absent themselves? If the answer to that question was also no, meaning the person had been tried and convicted in their complete ignorance, then the judge was required to determine whether the person would be entitled to a retrial before extradition could be permitted.

The critical word there was entitled. Not permitted to apply for a retrial. Not eligible to request one. Entitled, as of right, without condition, without the discretion of a foreign court standing in the way. This was the precise and considered interpretation of the Supreme Court in Merticariu v Judecatoria Arad, Romania [2024] UKSC 10; [2024] 1 WLR 1506, handed down in March 2024.

The facts of Merticariu are as so: Mr Merticariu had been convicted of burglary in Romania in his absence. Romania sought his extradition. The extradition request contained no evidence that he had known about the trial or had deliberately chosen not to attend, because on the facts, he had done neither. He had simply not known about case which had proceeded without him.

Romania argued, as it routinely does, that Mr Merticariu would have a right to apply for a retrial upon surrender. The Supreme Court, however, was not persuaded. An entitlement to apply, where the outcome of that application remains at the discretion of a foreign judge who could still conclude that the requested person had deliberately absented himself, is not an entitlement at all. Extradition was refused.

The companion case decided simultaneously, Bertino v Public Prosecutor’s Office, Italy [2024] UKSC 9; [2024] 1 WLR 1483, reinforced this by addressing what constitutes “deliberate absence” from trial. The Court held that “deliberate absence” requires an unequivocal and intentional waiver of the right to be present, not mere failure to update an address, nor flight from a country before charges are even brought. The bar had been set where Article 6 of the European Convention on Human Rights (“ECHR”) required it to be set: high.

Together, Bertino and Merticariu represented a coherent and principled approach to one of the most fundamental safeguards in extradition law. A person who did not know they had been tried cannot be treated as having accepted their conviction. A foreign court’s discretion to grant a retrial does not satisfy a domestic court’s duty to ensure a genuine entitlement exists.

What Section 246 Actually Does

Section 246 amends both section 20 and section 85 of the EA 2003. The text of the provision rewrites the critical subsection (5) of sections 20 and 85 to read that extradition may proceed where:

“any of the following applies—

(a)the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial;

(b)the person would be so entitled unless a court in the territory concerned were to decide that they deliberately absented themselves from their trial;

(c)the person was entitled as mentioned in paragraph (a) or (b) but expressly waived that entitlement;

(d)having been informed that they were entitled as mentioned in paragraph (a) or (b), the person failed to exercise that entitlement before the end of the period permitted for exercising it.”

Read in isolation, paragraph (a) appears to preserve the Merticariu position. But paragraph (b) is where issues lie. Under paragraph (b), extradition can proceed even where the retrial entitlement is conditional, specifically, where a foreign court retains the power to decide the requested person deliberately absented themselves and therefore deny a retrial on that ground. This is precisely the situation the Supreme Court found to be insufficient in Merticariu. Parliament has taken the outcome of that case and legislated it away.

The second limb of section 246 is more troubling. A new subsection (7A) is inserted into both section 20 and section 85, providing that:

“a person convicted at a trial at which they were legally represented (but not present in person) is to be treated as having been convicted in their presence.”

If a foreign state appointed a lawyer to represent the accused, regardless of whether the accused knew of the appointment, ever met the lawyer, or gave any instructions whatsoever, the accused may be legally deemed to have been present at their own trial. They cannot argue they were tried in their absence because, as a matter of law, they will be treated as having been there.

This creates an illusion of participation that is directly at odds with what the European Court of Human Rights (“ECtHR”) has long held. The ECtHR has emphasised that defendants have the right to attend their trial. This means they must be personally notified of when and where the trial will take place and explicitly told that it can go ahead in their absence. The appointment of a state lawyer, of whose existence the defendant was unaware, does not come close to satisfying that requirement. Under section 246, it appears now to satisfy the condition.

Opposition and The Government’s Justification

In the Hansard record of the Crime and Policing Bill Volume 854: debated on Wednesday 18 March 2026 in the House of Lords, Lord Carter of Haslemere and those opposing Clause 212 (what is now section 246) argued that it categorically contradicted the Supreme Court’s ruling in Merticariu, which had established that a person must be “entitled to a retrial rather than entitled to apply for a retrial.” Lord Wolfson of Tredegar sharpened this by pointing to new paragraph (b) of the clause, which he argued meant a UK court could find someone had not deliberately absented themselves and order extradition, only for the foreign court to then “decide that they deliberately absented themselves and deny them the retrial”, reintroducing the very problem the Supreme Court had ruled against. Lord Davies of Gower put it plainly: “if a foreign country cannot guarantee that a British citizen will be entitled to a fair trial, we should not be extraditing them to that country.”

Lord Hanson of Flint, for the government, pushed back by insisting the clause did not reduce ECHR protections, and gave an important assurance that the term “legally represented” in the clause “retains its ordinary meaning, requiring a mandate or instructions to be given, so a court-appointed lawyer acting without the person’s knowledge will continue to mean that they have not been ‘legally represented’ in terms of extradition law.” He maintained that UK courts would still scrutinise every case for compatibility with Article 6 rights, and that “there is no question of a UK court not being able fully to consider whether a requested person is being extradited in circumstances incompatible with their Article 6 rights.” Critics were not satisfied, the vote was called, but the attempt to remove the clause failed 83 to 69.

In the Hansard record of the Crime and Policing Bill Volume 854: debated on Wednesday 25 March 2026, Lord Hanson described the Bill as “the largest justice Bill in a generation.” It consumed over 88 hours in Committee and 44 hours on Report, a testament to the sheer volume of provisions it contained and the limited parliamentary bandwidth available to scrutinise each of them properly.

Lord Davies was notably direct in his criticism: “Clause 251, which gives foreign courts greater powers over the extradition of British citizens, is also undesirable.” That was the entirety of the Opposition’s recorded objection to what was then clause 251, now section 246, on the day the Bill passed.

The government’s position appears to have rested on the assumption that the existing safeguards are adequate. What is particularly striking is the irony that a government led by the Prime Minister, Sir Keir Starmer, himself a former Director of Public Prosecutions and a barrister of long standing in human rights law, introduced legislation that, as Lord Carter observed in his article, “relinquishes domestic oversight and leaves the fate of British citizens to be determined by foreign courts, with only a distant international remedy as a last resort.”

The Strasbourg Safety Net: A Net No More?

The response to criticism of section 246 is that the ECtHR remains available as a safeguard. If a British citizen is extradited in circumstances that violate Article 6 of the ECHR, they can bring proceedings in the ECtHR.

This is a response that does not survive serious scrutiny. The ECtHR is not an appellate court that can swiftly intervene before extradition is executed. A Rule 39 Order from the ECtHR is an interim measure to prevent imminent, irreparable harm, for individuals facing deportation or extradition. This acts as a last-minute injunction to halt removal until the court can fully review the merits of the case. Whilst notionally available, these are granted rarely, require urgent and compelling representations, and are subject to the Court’s own resources and caseload. The suggestion that a citizen who did not know they had been tried, and who faces imminent extradition, can readily navigate the Strasbourg system in time to prevent their removal is optimistic to say the least.

Our domestic courts may, in an appropriate case, declare section 246 incompatible with Article 6 of the ECHR under section 4 of the Human Rights Act 1998. As the jurisprudence makes clear, however, a declaration of incompatibility does not itself prevent extradition from proceeding. The citizen in question may find that they have won a Pyrrhic victory in the Court of Appeal on a Tuesday and are on a plane to Bucharest by Thursday.

The Strasbourg net is real, but for the person caught in the immediate machinery of extradition, it is a thread. This is why the safeguards were built into domestic law in the first place.

The Practical Impact

The effect of section 246 can be illustrated with a straightforward scenario. Suppose a British citizen lived in Romania for several years, committed a minor offence, and then returned to the United Kingdom before charges were formally brought. Romanian authorities prosecute in his absence, appoint a state-funded lawyer to attend the proceedings, and convict him. He has no knowledge of any of this. Years later, Romania issues a European Arrest Warrant, and he is arrested in Britain.

Under the pre-section 246 position, and in accordance with the Supreme Court’s ruling in Merticariu and Bertino, he would have had a strong basis to resist extradition. He was not present at trial, he did not deliberately absent himself, and Romania could not guarantee him an unconditional retrial because Romanian courts retain discretion to find deliberate absence. Extradition would be refused.

Under section 246, the analysis changes. Because a state lawyer was present at his trial, he is deemed by law to have been present himself. The question of retrial entitlement does not arise in the same way. He is extradited to face a foreign prison sentence for proceedings he had no knowledge of and no meaningful participation in.

The Consequence

The significance of section 246 extends beyond the relatively small number of extradition cases to which it will apply directly. It speaks to a broader question about the relationship between British citizens and foreign criminal justice systems, and the role of domestic courts in mediating that relationship.

Every British citizen who has lived, worked, or spent significant time in a Category 1 or Category 2 country now faces a more precarious situation than they did before the Act received Royal Assent. If criminal proceedings are commenced against them without their knowledge, and they return to the United Kingdom, where a state lawyer is appointed to represent them in their absence, and they are convicted, they may now be extradited on the basis of a deemed presence they never had.

This is not a theoretical dilemma. The real human consequences of defective extradition are severe. Detention in foreign prisons pending retrial applications that may be refused. Loss of employment, family life, and reputation. The financial cost of legal proceedings in unfamiliar jurisdictions. These are real costs borne by real people, and they fall hardest on those who lack the resources to pursue remedies in the ECtHR.

Conclusion

Section 246 of the Crime and Policing Act 2026 will not dominate the news. Extradition cases rarely do, unless they involve high-profile individuals or politically charged circumstances. But the law does not operate only in headline cases. It operates in the cases of ordinary people, workers, students, former residents, whose encounters with foreign justice systems are equally real and whose need for domestic protection is equally pressing.

Merticariu was hard won. It took years of litigation, conflicting High Court authority, and ultimately a Supreme Court judgment to establish clearly that “entitled to a retrial” means entitled, not merely permitted to apply. It took Bertino to establish that “deliberate absence” requires genuine knowledge and intentional waiver, not mere failure to remain in a country where proceedings have not yet been commenced.

Both of those principles are now substantially compromised. The deemed presence rule of subsection (7A) effectively bypasses Merticariu in many cases before it begins. The expanded grounds in the amended subsection (5) invite extradition in circumstances that the Supreme Court found insufficient just two years ago.

Parliament has, in the middle of its “largest justice Bill in a generation”, quietly shifted the balance of power in extradition proceedings away from the person standing in the dock of our domestic court and toward the foreign state seeking their removal. It has done so without the public impact assessment that such a significant change warranted, without the scrutiny that the Supreme Court’s recent and authoritative ruling on the very same provisions deserved, and without any serious parliamentary reckoning with what it means to be tried and convicted in a country you did not know had tried you.

The safety net remains, in theory, in Strasbourg. But for a British citizen facing extradition on the basis of a trial they never knew had happened, represented by a lawyer they never met, that net is very far away and very thin.

---

About the Author

Fatima Jama is a criminal and regulatory barrister with a growing practice spanning serious crime, fraud, financial regulation, and professional discipline. She is regularly instructed in complex cases and is experienced in representing clients across the full spectrum of society, from the most vulnerable individuals to senior professionals, company directors, and affluent private clients.