Antochi v Richterin Am Amstegericht of the Amstgericht Munchen (Munich), Germany

Extradition under section 21A of the Extradition Act 2003 will ordinarily be disproportionate where the likely penalty is non-custodial unless a sufficiently weighty feature concerning the seriousness of the conduct or the absence of less coercive measures justifies extradition.

For section 14, culpable delay may make extradition oppressive where changes during the period create hardship exceeding the ordinary consequences of extradition. Common life events, including marriage and the birth of a child, can generate such hardship.

Article 8 requires concrete attention to the consequences for a child whose primary carer is extradited. Unexplained prosecutorial delay diminishes the public interest in extradition and increases its impact on family life. Uncertainty about the carer’s ability to return to the United Kingdom may be considered both objectively and as a source of anguish.

The appellant challenged a district judge’s order for her extradition to Germany under an accusation European Arrest Warrant. The alleged conduct comprised distraction thefts and cashpoint withdrawals committed in March 2009. The appellant was not a fugitive and had lived and travelled openly. The German authorities issued an arrest alert in 2009 but did not issue the first European Arrest Warrant until September 2018.

During the intervening period, the appellant married, moved to the United Kingdom and became the primary carer of a young daughter. The district judge ordered extradition on 24 January 2020. Thornton J granted permission to appeal on 16 March 2020.

The appeal concerned whether extradition was disproportionate under section 21A(1)(b) of the Extradition Act 2003, oppressive by reason of passage of time under section 14, and incompatible with article 8 of the European Convention on Human Rights.

1. Appeal allowed on all three grounds; the appellant discharged. The district judge’s assessment under section 21A(1)(b) of the Extradition Act 2003 was wrong. Domestic sentencing practice indicated that the likely penalty was a short suspended sentence, treated as non-custodial for this purpose. Where a non-custodial penalty is likely, extradition requires a sufficiently weighty feature concerning the seriousness of the alleged conduct or the absence of less coercive measures. The alleged conduct was reasonably serious, but neither statutory consideration carried the necessary weight.

2. The German authority’s refusal to interview the appellant under section 21B did not provide enhanced weight in favour of extradition. The appellant had notified her wish for an interview within the only timeframe stated by the German prosecutor. The asserted need to avoid delay was weakened by nine years during which the German authorities had taken no explained step towards international surrender.

3. Extradition was also oppressive under section 14. Injustice principally concerns prejudice in the conduct of the foreign trial. Oppression principally concerns hardship caused by changes in circumstances during the relevant period, although the concepts may overlap. The German authorities’ unexplained nine-year delay was culpable. During it, the appellant married, relocated, became a mother and primary carer, established a supportive household and experienced marital breakdown. The resulting hardship to her and her daughter crossed the high threshold of oppression.

4. Extradition was incompatible with article 8. The culpable delay substantially diminished the public interest in extradition and increased the interference with private and family life. The court gave careful attention to the very substantial emotional and psychological impact upon the appellant’s nearly five-year-old daughter, while recognising that relatives could care for her in the family home.

5. Brexit uncertainty was relevant both subjectively, as a source of anguish, and objectively. Without speculation, the court could consider the substantial risk that the appellant might be unable to return to the United Kingdom and that the child might have to leave her settled home, school and extended family to be reunited with her mother. The pandemic, the non-custodial likely penalty, the appellant’s good character and non-fugitive status also informed the balance. The public interest did not outweigh the interference with family life.

1. High Court (Administrative Court): The appeal was allowed on all three grounds and the appellant was discharged: [2020] EWHC 3092 (Admin).
2. High Court: Thornton J granted permission to appeal on 16 March 2020.
3. District judge: DJ Jabbitt ordered the appellant’s extradition to Germany on 24 January 2020 following a hearing on 19 December 2019.