Extradition: An Overview

Extradition is a tool that allows countries to ensure that suspects or criminals who flee to other jurisdictions can be brought to justice. It is an effective mechanism to ensure criminal accountability, which promotes international co-operation between states. However, some states can manipulate the process, as a political instrument ‒ with divergent legal systems ‒ requires an acute focus on human rights. As a practice area, it is constantly evolving in response to dynamic international politics and jurisprudential developments. 

The 5SAH extradition team review key moments in extradition law from the past 12 months and consider trends and developments for the year ahead. 

Section 20 – Right to Fair Trial

In March 2024, the UK Supreme Court handed down two key decisions examining Section 20 of the Extradition Act 2003 ‒ namely, Bertino v Italy (2024) UKSC 9 (“Bertino”) and Merticariu v Romania (2024) UKSC 10 (“Merticariu”). These decisions reviewed the proper approach to be adopted when determining if a requested person (RP) was deliberately absent from trial, as well as their entitlement to retrial. They reinforced the imperative that persons tried in their absence can only be regarded as deliberately absent when they have unequivocally waived their right to be present at that trial. That waiver must be knowing and intelligent. Where there was no such waiver, the right to retrial must be absolute. The effect of these combined decisions was to strengthen the defence position on Section 20 and to re-energise litigation in this area.

In Mohammed & Oprea v Romania (2025) EWHC 1671 (Admin), the “main battleground” was entitlement to retrial under Romanian law (and compatibility of Article 466 of the Romanian Penal Code with the more stringent requirements established in Merticariu). However, this point was ultimately not contested by the Romanian Judicial Authority and the appeal was allowed on other grounds. For helpful commentary on the right to retrial, see also Dimin v Romania (2025) EWHC 768 (Admin) and Portugal v Santos (2025) EWHC 1743 (Admin). 

Defence excitement at these new grounds of challenge may be short-lived. Clause 195 of the Crime and Policing Bill before the House of Lords will, if passed, re-draft Section 20 such as to undo the effect of Merticariu and lighten the Judicial Authority’s burden in retrial cases. It provides that extradition may be ordered if an RP has a right to apply for a retrial (even if that will be refused because the territory concerned considers that the RP was deliberately absent). The Crime and Policing Bill will also put on a statutory footing the principle that, if an RP is legally represented at trial, they will be deemed to have been convicted in person. This will no doubt form the basis for lively discussion in the courts if passed. 

Dual Criminality ‒ Supreme Court Decision in El-Khouri  

As courts grapple with the increasingly international nature of criminality and how far jurisdiction can be stretched, the issue of dual criminality was shaken up by the decision of the UK Supreme Court in El-Khouri v Government of the United States of America (2025) UKSC 3.

The UK Supreme Court unexpectedly bulldozed long-standing authorities of King’s Prosecutor, Brussels v Cando Armas (2005) UKHL 67 and (in relation to money laundering) R v Rogers (2014) EWCA Crim 1680. The approach to determining whether dual criminality is made out has been rewritten and now requires the court to identify where the person’s acts/activity occurred and not where the effects of the conduct played out. The effects of this case are expected to be significant and long-lasting.

Prison Conditions

The courts have continued to apply a very high threshold to establishing real risk of inhuman and degrading treatment by reason of prison conditions. Zeka v Prosecutor General’s Office in Antwerp, Belgium (2025) EWHC 336 considered several cases that raised overcrowding and the impact of repeated strike action by prison staff in Belgium prisons. Despite these issues, the court confirmed there was no real risk of Article 3 of the European Convention on Human Rights breaches. 

Even where the Article 3 threshold is breached, the courts have demonstrated their ongoing willingness to accept assurances, notwithstanding concerns over implementation. In Costappis v Cyprus 2025 EWHC 785, the court allowed the appeal on Article 3 grounds ‒ “unless the respondent provides supplementary information as to the conditions in which the appellants will be held (particularly as to in-cell sanitation with a degree of privacy, cell ventilation and natural light, and the out-of-cell regime), which enables the court to be satisfied that there is no longer a real risk that the appellants will suffer inhuman and degrading treatment if they are extradited”. The assurance provided was accepted.

In the first Japanese extradition request to the UK, the divisional court overturned the decision of the district judge and concluded in Japan v Chappell and Wright (2025) EWHC 166 (Admin) that the Article 3 assurances were sufficient, with no real risk of forced labour. In Ciorici & Ors v Government of Moldova (2025) EWHC 809 (Admin), the court confirmed that assurances provided by Moldovan authorities were sufficient. 

Practitioners continue to raise challenges in respect of new jurisdictions as the evidence shifts. This year has seen Irish prisons being subjected to scrutiny with the recently published CPT report confirming the parlous state of their prison estate. The coming months will see this issue litigated before the High Court for the first time.

Article 8 ‒ Right to Private and Family Life

Since Norris v Government of United States of America (2010) UKSC 9, the right to private and family life (per Article 8 of the European Convention on Human Rights) has given rise to an unstoppable volume of litigation. It has been raised both in the most acute and compelling cases and in the entirely mundane and (perhaps) unarguable.

In Andrysiewicz v Poland (2025) UKSC 23, the UK Supreme Court sought to reinforce the unarguability of this challenge in all ‒ save the very few exceptional ‒ cases (while, as ever, emphasising that no test of exceptionality applies). The case concerned the relevance to the Article 8 balancing exercise of an individual’s probable early release from custody upon return to Poland. The UK Supreme Court held that “save in rare cases”, the UK court should not try to predict the prospects of early release, and the mere possibility of early release adds little weight in the balance against extradition.

In Sekowski v Poland (2025) 7 WLUK 587, the court clarified that exceptionality was not a legal test but a description of the consequences.

INTERPOL Red Notices  

Although British courts have been keen to ensure that criminals do not find safe harbour within their jurisdiction, there have been concerns raised at political levels about the potential to abuse these mechanisms so as to target people unfairly. The Joint Committee on Human Rights published its report on “Transnational Repression in the UK” in July 2025, noting the abuse of Interpol Red Notices by authoritarian regimes to target critics or those living in exile. Practitioners must continue to be alert to the potential for such abuses in their cases. 

Outlook

2025 has seen significant UK Supreme Court decisions that have impacted multiple aspects of extradition law. Consequently, new arguments in previously settled areas are being advanced at all levels of extradition court. International developments continue to have their effect. Simultaneously, the Crime and Policing Bill ‒ if passed ‒ will inevitably result in extensive litigation. Extradition proves an exciting and challenging area of work involving human rights concerns at their most acute.