DF v Amtsgericht Nürnberg, Germany

On an extradition appeal, the appellate court must decide whether the district judge reached the wrong statutory conclusion. Under section 14 of the Extradition Act 2003, delay may make extradition oppressive even where the requested person was not responsible for it and the requesting state’s culpability is uncertain. The gravity of the alleged offence is highly significant, but is not determinative. The court must assess the extent and impact of the delay together with all relevant circumstances.

In an Article 8 case, the welfare of affected children is a primary consideration. Extradition may be disproportionate where its consequences for innocent children are exceptionally severe, particularly when delay has reduced the public interest in extradition and no realistic replacement for the requested person’s caregiving role is evidenced.

DF appealed under section 26 of the Extradition Act 2003 against an order made by District Judge McGarva on 18 May 2021 under section 21A(5), directing his extradition to Germany to face trial for an alleged 2002 aggravated robbery involving serious violence.

He argued that extradition was barred by section 14 because of the substantial passage of time and would be disproportionate under Article 8 of the European Convention on Human Rights. He relied particularly on his extensive caregiving role for his sister’s four young children, each of whom had significant developmental and behavioural difficulties, and on his sister’s health problems. The central issues were whether the district judge had erred in assessing oppression by reason of delay and whether extradition would have exceptionally severe consequences for the children and therefore be disproportionate.

1. Appeal allowed; DF discharged. The appellate test was whether the district judge was wrong in answering the statutory questions. The court ordinarily respects factual findings, but the evidence here was largely undisputed and the district judge’s assessment of DF’s caregiving role had been given relatively little weight without a proper evidential basis.
2. Under section 14 of the Extradition Act 2003, oppression concerns hardship to the requested person resulting from changes in circumstances during the relevant period. The effect of delay is central. The gravity of the alleged offence is a highly significant factor, but it is not determinative and does not prevent reliance on section 14. Culpability by the requesting state is relevant but not a precondition to relying on delay.
3. The delay was substantially unexplained and lasted about 17 or 18 years, during which DF’s life radically changed. He developed substantial co-parenting responsibilities, had no reason to believe that he was under investigation in Germany, and had become central to the care of four disabled children. The seriousness of the alleged offence and DF’s UK convictions did not outweigh the exceptionally severe consequences of extradition.
4. Article 8 required a balance between the family’s rights and the public interest in extradition. The children’s welfare was a primary consideration. The court accepted that the delay diminished the public interest, that the children’s collective needs were exceptionally demanding, that DF was effectively co-parenting with his sister, and that there was no evidential basis for concluding that local authority services or the wider family could provide anything close to equivalent care.
5. The court therefore concluded that extradition would be oppressive under section 14 and disproportionate under Article 8. It was unnecessary formally to admit the fresh evidence, although it had been read de bene esse and strengthened the conclusions.

• High Court (Administrative Court): The appeal against the order of District Judge McGarva dated 18 May 2021 was allowed. The extradition order was set aside and DF was discharged.
• District Judge (Magistrates’ Court): On 18 May 2021, ordered DF’s extradition to Germany under section 21A(5) of the Extradition Act 2003.