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On 29 September 2026, section 246 of the Crime and Policing Act 2026 came into force and narrowed one of the few complete answers to an extradition request. Where a person has been convicted abroad without being present at the trial, the court has to ask whether they would get a retrial. If the answer was no, the court had to discharge them. Section 246 adds three new ways for that question to be answered against the person, and provides that a trial attended by their lawyer but not by them counts as a trial they attended.
The change applies by reference to the date of arrest, not the date of the request or the hearing. A person arrested on 28 September 2026 is dealt with under the old test, however long the case runs. This guide is for anyone arrested on an extradition warrant, anyone who suspects a request is coming, and the families and advisers around them. It matters because, since 29 September, a conviction abroad that you never knew about, or a trial your lawyer attended without you, can now more readily be enough to send you to serve a sentence in another country.
In this guide I set out how a request reaches a person in the UK, what the court actually decides, precisely what section 246 changed, what happens after the hearing, and what the first 48 hours look like.
Extradition is a formal process in which one country asks another to surrender someone. The extradition process enables governments to bring fugitives abroad back to stand trial or to serve a sentence, but in the UK every request has to pass through the courts and, in many cases, a minister. It involves a sequence of requests, judicial decisions and executive decisions before anyone is transferred. This guide is written from the text of UK extradition law rather than from commentary.
Extradition is the formal legal process by which one state surrenders a person to another, to stand trial or to serve a prison sentence. The Extradition Act 2003 calls that person the requested person, and it splits the world into two categories, with a different route for each.
Category 1 territories are dealt with under Part 1, on an arrest warrant certified by the National Crime Agency. For EU member states this now means a warrant issued under the Trade and Cooperation Agreement rather than a European Arrest Warrant, the UK having left the EAW system at the end of 2020. The surrender arrangements changed; the Part 1 machinery in the Extradition Act 2003 did not.
A person arrested under a Part 1 warrant must be given a copy of it as soon as practicable after arrest, and must be brought before the appropriate judge as soon as practicable. Where the person is not brought before the judge as required, and applies to be discharged, the judge must order discharge.
Category 2 territories are dealt with under Part 2, on a request transmitted to the Secretary of State, who decides whether to certify it. The arrangements behind Part 2 are a mix of bilateral extradition treaties with individual states and multilateral conventions, including the European Convention on Extradition. Arrest follows a warrant issued by a judge under section 71, or a provisional arrest under section 73 or 74A. The same as-soon-as-practicable duties apply under section 72.
Which category a requesting country falls into depends on the extradition arrangements the UK has with it. States are generally not obliged to extradite without a treaty or another legal basis, which is why bilateral extradition treaties matter: they define which offences are covered and on what conditions. The UK-EU Trade and Cooperation Agreement took effect on 1 January 2021. With EU member states, surrender now runs under the Trade and Cooperation Agreement, operated through Part 1. With most of the rest of the world it runs through an extradition treaty, a multilateral convention or, occasionally, special arrangements made for a single case, operated through Part 2. Whichever route applies, the formal request has to identify the person sought and the conduct alleged, and the extradition law applied to it in the UK court is the 2003 Act.
The requesting state does not usually bring its own lawyers to court. Under section 3(2)(ea) of the Prosecution of Offences Act 1985 the Crown Prosecution Service has the conduct of extradition proceedings, and in practice it presents the case for the requesting state.
Extradition proceedings for England and Wales are heard at Westminster Magistrates' Court, before a district judge assigned to extradition work, wherever in the country the arrest happened. At the initial hearing the judge fixes the date for the extradition hearing itself, remands the person in custody or on bail, and informs them of the effect of consenting to extradition. Consent is given before the judge and is irrevocable, a point worth reading twice, because consent is sometimes presented as the quick way out of custody.
The dates are not open-ended:
| Route | Provision | The hearing must begin by |
|---|---|---|
| Category 1, Part 1 warrant | s.8(4) | The end of 21 days starting with the date of arrest |
| Category 2, s.71 warrant | s.75(2) | The end of 2 months starting with the first appearance |
Both are extendable, and in Part 2 a later date can be fixed more than once where the judge believes it is in the interests of justice. Where the hearing does not begin in time and the person applies, the judge must order discharge. A timetable measured in weeks is the reason the work starts at arrest rather than at the hearing.
If the person is wanted to serve a sentence rather than to face trial, the judge is required to proceed under section 20 (category 1) or section 85 (category 2). Both work as a sequence of questions, and each one either moves the case on or ends it.
Where the person sought has not been convicted, a category 2 case can raise a further question. Under section 84 the judge must decide whether there is evidence which would be sufficient to make a case requiring an answer, the domestic prima facie evidence test, unless the territory has been designated under section 84(7). Designated territories, which include the United States, need only supply information, not evidence. Whether that test applies is one of the first things to establish in any category 2 case. Where prima facie evidence is required, the requesting country has to prove a case, not merely describe one.
For a person convicted in their absence, the third question above is the whole of the protection. Subsection (8) sets a floor under it: the judge must not answer it affirmatively unless, in the proceedings said to be a retrial, the person would have the right to defend themselves in person or through legal assistance of their own choosing, with free assistance where they lack the means and the interests of justice require it, and the right to examine witnesses against them and to call their own on the same terms.
Two things, and they pull in the same direction.
First, the retrial question got easier to answer against the person. Subsection (5) used to pose a single question: would this person be entitled to a retrial or to a review amounting to a retrial? Section 246 replaces it with four alternatives, any one of which is enough:
Limbs (c) and (d) are the significant additions. Under the old wording, a person who had waived a retrial, or who had been told about one and let the deadline pass, was not entitled to a retrial, and the answer to subsection (5) was no. Discharge followed. Under the new wording each of those situations satisfies the subsection and the case proceeds.
Limb (b) does something different again. It allows the question to be answered affirmatively on a conditional basis, where the entitlement exists unless the foreign court later decides the person deliberately absented themselves. The decision on deliberate absence moves, in substance, from the district judge in London to a court in the requesting territory.
Second, a trial attended by a lawyer alone now counts as attendance. The new subsection (7A) provides that, for the purposes of subsection (1), a person convicted at a trial at which they were legally represented but not present in person is treated as having been convicted in their presence. That answers the first question in the sequence affirmatively, and the retrial question is never reached. In a jurisdiction where counsel routinely appears for an absent client, this is the amendment that will decide cases.
Subsection (8) was also amended, so that the rights it requires are assessed by reference to what would have constituted a retrial and what rights the person would have had, rather than only the present position.
Regulation 6 of SI 2026/960 disapplies the amendments in defined circumstances, and the trigger is the arrest.
Nothing turns on when the request was made, when it was certified, or when the hearing is listed. A person arrested on 28 September 2026 whose hearing is heard in 2027 is judged by the old, narrower test, with the old, wider protection. A person arrested on 29 September is not. The date on the custody record is therefore the first thing to check, and it is worth checking against the record rather than against anyone's recollection.
Section 246 changes one stage of the process. The rest stands.
The first question is whether the conduct is an extradition offence at all. That turns on dual criminality: broadly, whether the conduct alleged would have been a criminal offence here as well as in the foreign state. Where it would not, the request fails at that point.
Beyond it, a request can still be resisted on the statutory bars to extradition, which include the rule against double jeopardy, extraneous considerations, the passage of time, age, and speciality, and on the forum bar where a substantial measure of the conduct occurred in the UK and extradition would not be in the interests of justice. Where the person could face the death penalty, extradition to a category 2 territory cannot proceed unless the Secretary of State has an adequate written assurance that it will not be imposed or carried out. Beyond those, the judge must consider whether extradition would be compatible with the requested person's human rights under the European Convention on Human Rights, including the right to a fair trial, and there is a separate route to discharge where the person's physical or mental condition makes extradition unjust or oppressive.
There is no free-standing political offence exception in the 2003 Act. Instead, the extraneous considerations bar protects someone whose request is really aimed at their race, religion, nationality, gender, sexual orientation or political opinions. Requests with a political flavour can create political tension between governments, but the court decides the case on the statutory bars, not on diplomacy.
Prison conditions, medical evidence and family life are argued within those provisions rather than as free-standing objections, and they are evidence-heavy. Assurances offered by a requesting country are examined rather than accepted.
The extradition process does not end with the district judge.
In a category 2 case the judge does not order extradition. Where the case passes every stage, the judge sends it to the Secretary of State for a decision. Under section 93 the Secretary of State must decide whether extradition is prohibited by the capital punishment provision, by speciality (the rule that a person may be dealt with abroad only for the conduct they were extradited for), or by an earlier extradition or transfer to the United Kingdom. If any of those applies, the person is discharged. If none does, the Home Secretary must order extradition. Representations have to be made within 4 weeks, and under section 99 the order must be made within 2 months, failing which the person can apply to be discharged.
Appeal to the High Court needs permission, and the window is short.
| Route | Provision | Notice of application for leave must be given within |
|---|---|---|
| Category 1, against an extradition order | s.26(4) | 7 days starting with the day the order is made |
| Category 2, against the judge's decision to send the case | s.103(9) | 14 days starting with the day the Home Secretary informs the person of the order |
An appeal can be brought on a question of law or fact. Late notice can still be considered where the person did everything reasonably possible to give it in time, which is not a margin to plan around. The appeal courts apply the same statutory tests as the district judge, so an appeal is only as good as the evidence put in below.
The UK's highest court is rarely reached. Under section 32, a further appeal lies only with leave, and leave cannot be granted unless the High Court has certified that the decision involves a point of law of general public importance. In exceptional cases, the European Court of Human Rights can indicate an interim measure that halts removal while it considers an application.
Once the order is final, removal follows quickly. In a category 1 case the person must normally be extradited within 10 days, under section 35, counted from the end of the period allowed for an appeal or from the day an application for leave to appeal is finally refused. In a category 2 case the period is 28 days, under section 117, counted from the day the Home Secretary makes the order or from a final refusal of leave. A later date can be agreed or ordered, and if the deadline passes without reasonable cause the person can apply to be discharged.
An extradition case is decided far more by what is in place at the first hearing than by anything that happens later.
Not everyone finds out by being arrested. An Interpol red notice is a request circulated to police forces to locate and provisionally arrest a person pending extradition. It is not itself an arrest warrant and it is not a conviction, and its existence is often the first indication a person has that a foreign state is pursuing them, sometimes surfacing at a border rather than at a door.
Where a person has reason to think a request is coming, the work can start before any arrest. A request that is anticipated is a request that can be prepared for, and representations can be made to the authorities here about how it is handled.
We act for people who are the subject of requests for extradition in England and Wales, in both category 1 and category 2 cases, from arrest through to the extradition hearing and any appeal. The work is evidence-led: obtaining the warrant or request, establishing the procedural history in the overseas state, and instructing appropriately qualified foreign lawyers on the questions the court has to answer. Where the case calls for it, we instruct counsel with extradition practices at the specialist bar.
Extradition sits alongside the rest of what we do, and the cases rarely arrive on their own. A request frequently accompanies a domestic investigation, sometimes by the Serious Fraud Office or the National Crime Agency, a restraint or freezing order, or regulatory exposure, and those run on their own timetables. We cover the related ground in our guides to account freezing orders, dawn raids and money laundering under the Proceeds of Crime Act, and the wider practice on our fraud and financial crime page.
Where no charge has yet been brought in this country, the priority is the same as in any other case: pre-charge representation, made before a decision is taken rather than after. Where a charge has already been brought, we put the same analysis to the prosecution and seek a review of the charging decision and, where the evidence does not support it, a discontinuance.
Extradition cases involve people whose professional and personal position is exposed by the request itself. Discretion is built in. Nothing about a matter leaves this firm.
If you have been arrested on an extradition warrant, or you have reason to believe a request naming you is being prepared, speak to us before the first hearing.
Extradition is the formal legal process by which one state surrenders a person to another, either to face trial for an offence or to serve a custodial sentence already imposed. In the UK it is governed by the Extradition Act 2003, and every case goes before a court before anyone can be surrendered.
Yes. The UK extradites its own citizens, and nationality is not one of the bars in the Extradition Act 2003. The bars that do apply, the human rights questions and, since 29 September 2026, the narrower conviction-in-absence protection, apply in the same way whatever the nationality of the person sought.
Section 246 of the Crime and Policing Act 2026 amended sections 20 and 85 of the Extradition Act 2003, which deal with a person convicted abroad in their absence. It added three further ways for the court to answer the retrial question against the person, and provided that a person convicted at a trial where they were legally represented but not present is treated as having been convicted in their presence.
Not where the arrest came first. Under regulation 6 of SI 2026/960, the amendments do not apply where the extradition hearing arises from an arrest before 29 September 2026: an arrest under section 3 or 5 for a category 1 case, or under section 71, 73 or 74A for a category 2 case. The date of the request and the date of the hearing are irrelevant to this question.
Category 1 territories are dealt with under Part 1 of the Extradition Act 2003, on an arrest warrant certified by the National Crime Agency. Category 2 territories are dealt with under Part 2, on a request transmitted to the Home Secretary for certification. The routes, the powers of arrest and the timetables differ.
The first stage is short. For a category 1 warrant the extradition hearing must be fixed to begin within 21 days of arrest under section 8(4), and for a category 2 warrant within 2 months of the first appearance under section 75(2). Both can be extended, and an appeal adds considerably more. Where the hearing does not begin within the permitted period and the person applies, the judge must order discharge.
The court still has to consider it. The sequence in section 20 asks whether you were convicted in your presence, whether you deliberately absented yourself, and whether you would be entitled to a retrial. Since 29 September 2026 that last question is satisfied in more circumstances, including where an entitlement to a retrial was waived or was not exercised in time, and a trial at which a lawyer appeared for you counts as one you attended.
Which rules of extradition apply depends on the country making the request, which decides whether it is a category 1 or category 2 case, and, since 29 September 2026, on the date of arrest, which decides which version of sections 20 and 85 of UK extradition law governs a conviction in absence.
Consent is given before the judge and it is irrevocable. It ends the ability to contest the request. It is sometimes presented as the fastest route out of custody, and it is a decision to take on advice rather than in a cell.
In a category 1 case the judge orders extradition or discharge, and an appeal needs the High Court's permission, with notice given within 7 days of the order. In a category 2 case the judge sends the case to the Home Secretary, who decides whether extradition is prohibited on capital punishment, speciality or earlier-extradition grounds, and appeal notice must be given within 14 days of being told of the Home Secretary's order. A further appeal to the UK's highest court needs a certified point of law of general public importance.
Yes. The statutory bars remain, and the judge must consider whether extradition would be compatible with the person's Convention rights. There is also a separate route to discharge where physical or mental condition would make extradition unjust or oppressive. These are evidence-heavy arguments rather than assertions, and assurances from a state concerned are examined rather than taken at face value.
No. A red notice is a request circulated among police forces to locate and provisionally arrest a person pending a request for extradition. It is not an arrest warrant, it is not a court order and it carries no finding of guilt. A request for extradition is the formal step that follows, and it is dealt with under the Extradition Act 2003. A red notice can, however, be the first sign that one is coming, and it can have immediate consequences at borders and for banking.
Take advice before it arrives. A request that is anticipated can be prepared for: the procedural history in the foreign state can be established, foreign law evidence can be commissioned while there is time, and representations can be made here about how the request is handled. The alternative is meeting a 21-day timetable from a standing start.
Lex Vindico Group is regulated by the Solicitors Regulation Authority. We represent individuals nationally across England and Wales in criminal, regulatory, and parallel-proceedings defence at every stage, and most decisively, at the pre-charge stage.
This article is written by Akram Mula, LLM, Solicitor Advocate and CPS-approved Prosecutor, founder of Lex Vindico Group. It is general legal information about the Extradition Act 2003 and the changes made to it by the Crime and Policing Act 2026, not legal advice on any specific case. For advice on your specific circumstances, contact our team directly.
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