On 17 November 2020 an appeal decided by the High Court illustrates one of the protections that will be lost when the UK Brexits from the EU on 1st January 2020. 

In Daniela Antochi v Richterin AM Amstegericht of the Amstgericht Munchen (Munich), Germany [2020] EWHC 3092 (Admin) Mr Justice Fordham held that the accusation extradition warrant (European Arrest Warrant) should be discharged on the following basis:

1. Extradition would be disproportionate given the agreement that a non custodial sentence was likely (s21A(1)(b);
2. Extradition would be unjust and oppressive due to the delay caused in issuing the warrant by the German authorities (s14 );
3. Extradition would violate Ms Antochi’s article 8 rights (right to family life- s21)

Ms Antochi was accused of a series of supermarket distraction thefts and cash withdrawals largely involving elderly victims in 2009 in Germany. She became a known suspect in October 2009 but had already left Germany so was not aware. 

Ms Antochi informed the court she had been lured to Germany by an abusive male who forced her to carry out the thefts but managed to get away and returned home to Italy shortly after. She travelled to Germany in 2013 to try and find work, but was unsuccessful, so returned to Italy again and then came to the UK to join her husband. She had a child. She was not aware she was wanted in Germany. She was never arrested or stopped at any ports.

Despite having opportunities to arrest Ms Antochi when she returned to Germany in 2013 or requesting her surrender from the Italian authorities, the German Government failed to do anything and waited until May 2019 to issue an accusation warrant, once she was in the UK and some 10 years after the alleged offending. By this stage she had got married and had a child, but had separated and had become a single parent. She had a dependent 5 year old child who heavily relied on her.

Ms Antochi appeared to have a strong case but the District Judge refused to discharge the warrant so she appealed. At the appeal, Fordham J upheld the District Judge’s assessment that the offending was reasonably serious, but it was common ground between both parties, by examining UK sentencing guidelines, that Ms Antochi was likely to receive a non custodial sentence. Fordham J therefore held that, in light of the likely non custodial sentence, extradition would be disproportionate and fell to be discharged on that ground alone; s21A(1)(b).

Once the UK leaves the EU, s21A will no longer exist. There is a risk that this requirement  for proportionality may be lost once the 27 EU states become Part 2 territories as there is no parallel provision to s21A  in part 2 of the Extradition Act 2003. Proportionality can be argued in conjunction with other bars to extradition under Part 2 such as delay making extradition unjust and oppressive and the right to family life. If Ms Antochi was arrested in 2021 these would have been extremely strong arguments, indeed Fordham J held that the warrant should be discharged on both these grounds as well. But few cases have such compelling personal circumstances as those of Ms Antochi or suffer such inexcusable delays at the hands of the requesting state. If the only ground to resist extradition is based on proportionality due to the expectation of a non custodial sentence, the likelihood of extradition will be greatly increased in 2021, unless there are other compelling factors to resist extradition.