High Court sets aside Extradition Order

November 17, 2020

The extradition to Germany of a 36-year-old Appellant was today set aside by the Administrative Court on all grounds pleaded: Daniela Antochi v Richterin AM Amstegericht of the Amstgericht Munchen (Munich), Germany [2020] EWHC 3092 (Admin)

The order had been made by a District Judge after an oral hearing on 19 December 2019.

The request for extradition was in conjunction with an accusation European Arrest Warrant (EAW) issued on 29 May 2019.

The appellant was accused of involvement in a series of supermarket distraction thefts and cashpoint withdrawals which took place in 2009.

The first ground of appeal was based on the special proportionality test in section 21A(1)(b) Extradition Act 2003.

When read with section 21A(2), (3) and (4)(b) Fordham J said the extradition judge must order discharge if she concludes that the extradition would be disproportionate, taking into account – only, and so far as the judge considered it appropriate – three statutorily-specified matters:

(a) the seriousness of the conduct alleged to constitute the extradition offence;

(b) the likely penalty that would be imposed if the requested person were found guilty of the extradition offence; and

The District Judge described the seriousness of the alleged conduct as reasonably serious, which the appeal court adopted though adding that it was not suggesting of a particularly weighty feature.

When analysed, the likely penalty to be involved was non-custodial.

In respect of the less coercive measures, the Germany position was not one to which enhanced weight could be attributed given their rejection of a section 21B invitation for an interview.

The appeal court was unable to accept that the statutorily prescribed matters in the context of this case rendered proportionate the extradition of the Appellant to face what, on accepted analysis, was to be assessed as a likely non-custodial penalty.

The appellant fell to be discharged on those matters alone, but Fordham J also considered two further grounds of appeal that had been fully argued.

Under section 14 of the 2003 Act the statutory test was whether it would be unjust or oppressive to extradite [the appellant] by reason of the passage of time since she was alleged to have committed the extradition offence.

This was a clear case of culpable delay.

In the present case the German authorities had identified the appellant by 9 October 2009 at the latest.

She was at that stage living openly in Italy, as the holder of a Romanian identity card, and continued to retain her family name until 2012 when she married.

In 2013 the appellant travelled back to Germany and unsuccessfully sought employment there. She was not picked up by the Germany authorities.

The key events in her life, relevant in considering whether extradition would visit her and other family members with hardship, in the light of changed circumstances during the period of (culpable) delay, such that extradition would be oppressive, were that she came to the United Kingdom in 2015 to join her husband here, gave birth to baby A in December 2015, established a family household of mutual support, and experienced the breakdown in her marriage.

The consequences for the appellant and her child A made extradition oppressive.

The final point was under Art 8 ECHR, the heart of which was child A who turned 5 next month.

She was born in the United Kingdom and had just started school. The appellant was her mother and primary carer and had been since her birth.

A’s father had now left the family home and A saw him every other weekend.

The Article 8 question was:

Do the strong and ever-present public interest considerations in support of extradition outweigh the very substantial impacts of removing the 36-year-old primary carer appellant from her 4 (nearly 5) year-old daughter bearing in mind:

that the daughter had a stable home with aunts and grandmother who would look after her;

that this was a case involving ‘reasonably serious’ alleged criminal conduct, but that the appellant was recognised to have been acting under the direction of another and would be raising a defence of duress and substantial mitigation in any event;

In circumstances where:

even taken at its highest, it was agreed that the appropriate assessment as to the likely penalty was that it would be non-custodial;

the appellant had been unable to obtain assistance from the German public defender;

the requesting state authorities had effectively withdrawn the offer previously made to allow a right to be interviewed;

the criminal conduct in question was more than a decade old, followed by 9 years culpable delay by the German prosecuting authorities,

the appellant was otherwise of good character,

she was not and never had been a fugitive,

she had built a positive and productive family life in the United Kingdom;

extradition to Germany would be during the Covid-19 pandemic;

she would face both anguish (subjectively) and (objectively) the risk of harm for her and her young daughter given the uncertainties as to what would happen to them about where they would be reunited after she had been in Germany?

In the Court’s judgment, the Article 8 analysis produced the clear answer No.

Extradition would not in this case be proportionate in Article 8 terms.

The appeal succeeded on all grounds and the appellant would be discharged.