On 8 July 2025, Danielle Barden, led by Helen Malcolm KC of 3 Raymond Buildings, instructed by William Bergstrom of GT Stewart Solicitors, appeared on behalf of the Respondent in an appeal brought by a Portuguese Judicial Authority. The High Court refused the appeal, on the basis that the Respondent would not have a right to a retrial, or a review amounting to a retrial, if he was extradited to Portugal. As a result, the Respondent was discharged. In doing so, the High Court has confirmed that any requested person who was not deliberately absent for their trial cannot be extradited to Portugal, as their extradition is barred under section 20(5) of the Extradition Act 2003.
The Respondent was arrested in February 2024 on an Arrest Warrant issued in respect of an offence that he was accused of committing in October 2010 in Portugal. The Respondent was unaware that he had been tried and convicted in his absence in 2016. In October 2024, District Judge McGarva ordered his discharge, on the basis that he was not deliberately absent from his trial and would not have a right to a retrial, or a review amounting to a retrial, under section 20(5) of the Extradition Act 2003.
In reaching that decision, the District Judge considered Further Information served by the Portuguese Judicial Authority and expert evidence served on behalf of the Respondent from a Portuguese lawyer, Diana Silva Pereira, in respect of the appeal process in Portugal. That evidence made clear that there was no automatic right for an appellant to examine or have examined witnesses against him or to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him, as is required under section 20(8)(b). That is because an appellant in Portugal may only apply to examine witnesses or have witnesses attend on their behalf if they can first show that the original trial suffered from one of three defects, under Article 410 of Portuguese Penal Code:
- Insufficiency in deciding the proven matter of fact;
- Irremediable contradiction in the reasoning or between the reasoning and the decision; and/or
- Notorious error in the assessment of the evidence.
Therefore, only if the appeal court found that the trial which had taken place in the Respondent’s absence suffered from one of the listed defects would he be able to utilise the rights under section 20(8)(b). The expert evidence also made clear that any renewal of the evidence produced in the first instance happened only in very exceptional cases.
The District Judge found that:
‘the respondent would only be permitted to call evidence in exceptional circumstances’, ‘the right to do so was contingent on the exercise of judicial discretion’ and thus the right to a retrial was not unequivocal.
As a result, he found that retrial rights in Portugal do not comply with the requirements of section 20(5)/20(8)(b) of the Extradition Act 2003 and he refused to order the Respondent’s extradition to Portugal.
The Portuguese Judicial Authority appealed that decision, arguing that the entitlement to a retrial under section 20(5) must be unequivocal, but that the rights under section 20(8) could be qualified. Therefore, it was argued that the Respondent’s unfettered entitlement to an appeal hearing at which he could challenge the merits of the charge and ask the court to admit new evidence was sufficient under both Article 6 of the European Convention on Human Rights and section 20(8)(b).
On behalf of the Respondent, it was argued that the appeal hearing to which the Respondent was entitled did not amount to a retrial within the meaning of section 20(5) because the Respondent would be permitted to call evidence only in exceptional circumstances. Section 20(8) was explanatory and clarificatory of the requirements for a retrial, or a review amounting to a retrial, under section 20(5), which includes the right to call evidence. There is no difference in law between the meaning of entitlement in section 20(5) and right in section 20(8). Further, there is no difference between a retrial and a review amounting to a retrial. The different language merely covers the various forms of appeal available in other jurisdictions. Therefore, to amount to a re-trial there must be a right to call evidence that is not subject to any substantive decision or the exercise of a discretionary judgment, as per Merticariu v Judecatoria Arad Romania [2024] UKSC 10 [2024] 1 WLR 1506.
Johnson J found that the District Judge was right to find that the Respondent was not entitled to a retrial. He found that section 20(8) explicitly requires that an entitlement to a retrial/review necessarily involves a right to call evidence and that nothing in the language of section 20(5) or section 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, e.g. procedural requirements observed.
Johnson J remarked that Article 6 requires that a defendant is entitled to a fair hearing, which includes a right to be heard and a 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. The Judge found that the Respondent has not been afforded either right, because he was unaware of his trial, and the appeal to which he will be entitled will not afford him those rights. It is incompatible with Article 6 that the Respondent’s right to a retrial/review will be subject to a requirement for him first to show some legal defect in the original trial.
As a result, the High Court dismissed the appeal.
See the High Court’s judgment here.
Danielle Barden is a specialist barrister instructed in extradition, business crime, serious organised crime and general crime. She is ranked in the Legal 500 in International Crime & Extradition and in Fraud: Crime. Danielle is also recognised in Chambers & Partners for her work in Extradition, Crime, and Financial Crime.
