On 21st September, a Scottish Crown prosecutor asked an Edinburgh court to show “due deference to France” and extradite a man who is accused of no crime under Scottish law. Real History blog editor Peter Rushton reports from the court. Este artículo ahora también está disponible en español Dieser Bericht ist jetzt auch in deutscher Übersetzung verfügbar
The revisionist historian Vincent Reynouard was appearing at Edinburgh Sheriff Court for a full hearing of his extradition case. This was almost exactly ten months after his arrest in the Scottish fishing village of Anstruther, where Vincent had been working quietly as a private tutor and completing his most important historical revisionist work concerning the so-called “massacre” at Oradour.
He was arrested in a raid by Scottish police, working with Scotland Yard detectives, at the request of French prosecutors who wish to jail him for revisionist videos concerning both Oradour and the alleged homicidal ‘gas chambers’ at Auschwitz.
None of these revisionist works contravenes Scottish or English law, but the UK authorities were heavily lobbied by the Jewish charity ‘Campaign Against Antisemitism’ and by the ultra-Zionist peer Lord Austin (formerly Ian Austin MP).
The sheer absurdity of this situation – the criminalisation of a scholar – was brought home to me by two incidents (one trivial, one serious) at the Edinburgh Court while waiting for Vincent’s case to be heard.
A sticker for the Edinburgh branch of the St Pauli supporters’ club was displayed in the lavatory at the Court. Supporters of St Pauli (a football club based in Hamburg) are notorious worldwide for their violent ‘anti-fascism’ and Marxism. It is impossible to imagine that a sticker promoting any violent ‘racist’ or ‘fascist’ group (from, for example, supporters of a club such as Lazio, Chelsea, Millwall or Oldham) would have been allowed to remain on display at a court!
The other incident was more serious. Vincent’s case was being heard in a courtroom that specialises in extradition, which of course meant that more than two hours were taken up (before Vincent’s case began) by a long procession of procedural, pre-trial discussions of a range of unconnected defendants, including alleged gangsters from Eastern Europe.
By far the most serious of these procedural discussions involved a defendant appearing by video link. This was the notorious ‘Real IRA’ terrorist and assassin Antoin Duffy (aka Anton Duffy), who in 2015 was jailed for 17 years for conspiracy to murder two ex-UDA members (Johnny Adair and Sam ‘Skelly’ McCrory) exiled in Scotland after their expulsion from the UDA.
Duffy is still serving this sentence in a top-security Scottish jail, but he is also now wanted by police and prosecutors in the Irish Republic, to face charges of murdering Denis Donaldson, an MI5 agent inside the IRA, who was killed in 2006. This is why Duffy was appearing on the same day as Vincent, in the Edinburgh extradition court.
H&D cannot yet comment on the latest specific charges – but it is beyond dispute (based on earlier convictions and years of police and MI5 covert surveillance) that Duffy is one of the UK’s most dangerous terrorists. Extradition procedures are designed for those accused of actual crimes: yet this week in Edinburgh (and in fact for the past ten months) Vincent Reynouard – a scholar, not a criminal – has been subjected to these same procedures.
As we have also seen with persistent abuse of the Terrorism Act by the UK authorities, those who simply seek to tell the truth about European history are persecuted by UK authorities who choose to follow the instructions of shadowy international lobbyists rather than UK law.
Nevertheless, there are reasons to be optimistic about Vincent’s case. He was very ably represented by his solicitor Paul Dunne and advocate Fred Mackintosh KC (who also practices as a barrister in England). It should of course be emphasised that Vincent’s defence is (rightly and properly) based on legal arguments, not on his historical and political views per se. As in any other such case, it should not be inferred that either Mr Dunne or Mr Mackintosh is in any way sympathetic to Vincent’s opinions, or indeed that either of them have any views or expertise on historical or political matters. They are experts on extradition law, not on historical revisionism or national socialism.
Due to Vincent having already spent ten months in jail (for something that isn’t even a crime in the UK!) the initial French warrant has been discharged.
This initial warrant was based on his having already been convicted and sentenced (in his absence) by a Parisian court. But he is no longer extraditable on those grounds, because that sentence has (in effect) already been served in Scotland, while Vincent awaited this extradition hearing.
Having dealt with the discharge of the first warrant, Mr Mackintosh proceeded to address the second.
Since it involves new charges (rather than a prior conviction) the ‘ticklist’ of the old European Arrest Warrant (now operating in revised form post-Brexit) doesn’t apply. Mr Mackintosh therefore pointed out that the traditional extradition principle of “dual criminality” operates in this case.
In other words, the Edinburgh Court must be satisfied that the conduct of which Vincent is accused would potentially be criminal in Scotland as well as in France.
The judge should (Mr Mackintosh continued) draw inferences as to Vincent’s “intent”, by looking at his overall conduct, and by studying the entire transcripts of his videos, not merely accepting the prosecutors’ interpretation of certain phrases taken out of context.
He highlighted one video, on which the prosecutors had based a large part of their case, and emphasised that the judge should study the full translated transcript carefully. This was a video published on 22nd February 2020, whose title translates as “The Jewish Problem – what solution?”
Vincent’s counsel did not dispute that his videos contain what has been termed “Holocaust denial”, that some of them address the “Jewish problem”, and that one in particular “denies” the historicity of the “Oradour massacre”.
But Mr Mackintosh’s central argument as to why Vincent should not be extradited began with a judgment in 2015 by the European Court of Human Rights, in the case of Perinçek v. Switzerland.
The relevant aspect of this judgment (which involved a Turkish political activist accused of “denying” the Armenian genocide committed by the Ottoman Empire during the First World War), is that the European Court spelled out the very different laws among European states regarding “denial” of genocide.
Among those European countries that have signed up to the European Convention on Human Rights, the Court noted:
“there are now essentially four types of regimes in this domain, in terms of scope of the offence of genocide denial: (a) States, such as Austria, Belgium, France, Germany, the Netherlands and Romania, that only criminalise the denial of the Holocaust or more generally of Nazi crimes (Romania in addition criminalises the Nazi extermination of the Roma, and Greece criminalises, on top of the Holocaust and Nazi crimes, the denial of genocides recognised by an international court or its own Parliament); (b) States, such as the Czech Republic and Poland, that criminalise the denial of Nazi and communist crimes; (c) States, such as Andorra, Cyprus, Hungary, Latvia, Liechtenstein, Lithuania, Luxembourg, the former Yugoslav Republic of Macedonia, Malta, Slovakia, Slovenia and Switzerland, that criminalise the denial of any genocide (Lithuania in addition specifically criminalises denial of Soviet and Nazi crimes vis-à-vis the Lithuanians, but Cyprus only criminalises the denial of genocides recognised as such by a competent court); and (d) States, such as Finland, Italy, Spain (following the 2007 judgment of its Constitutional Court cited in paragraph 96 above), the United Kingdom and the Scandinavian States, that do not have special provisions criminalising such conduct.”
The European Court was clear, Mr Mackintosh said, that the UK had not chosen to make any form of “Holocaust denial” a specific criminal offence.
He added that in Vincent Reynouard’s case, the prosecution therefore had to satisfy the Scottish court that Vincent’s conduct (as alleged in the extradition warrant) met the test either for a S.127 Communications Act offence, or a breach of the peace (a common law offence).
The question of what behaviour can constitute a “breach of the peace” under Scottish law has been revised several times during recent decades – and is a matter on which Mr Mackintosh has special expertise, having for example written an article for Scottish Legal News on this very topic.
Such conduct must be serious enough to “cause alarm to ordinary people”, and it must “threaten serious disturbance to the community”. The relevant judgment was delivered in 2014 by Lady Clark of Calton, and Mr Mackintosh said that Lady Clark had reminded the lower courts that “for conduct to be likely to cause a reasonable person to suffer fear or alarm there has to be something further than annoyance and distress”.
Mr Mackintosh explained that the test of whether conduct “threatens serious disturbance in the community” necessarily involves considering the full context. He quoted several cases in Scottish courts involving racial and sectarian abuse at football matches, where a crucial element was that this abuse had been directed at (or delivered in close proximity to) rival supporters, in the incendiary context of a football match attended by supporters of opposing teams.
In a 1981 case against communist activist Mike Duffield, the Sheriff Court had ruled that shouting pro-IRA slogans while selling the Marxist newspaper Fight Racism Fight Imperialism and the pro-IRA newspaper Hands off Ireland was a breach of the peace, despite this being carried out at the stadium of Glasgow Celtic, where many fans hold similar views.
And on the other side of politics, there had been a breach of the peace case involving a National Front activist selling the Young NF paper Bulldog outside the Hearts stadium in Edinburgh.
But in all these cases – and especially bearing in mind recent clarifications of the law in Scotland – it was essential to assess the wider context of the words used – in Vincent’s case, words used in videos broadcast online.
There were eight such videos referred to by French prosecutors in the present warrant. The first related specifically to Oradour. The second, third and fourth presented detailed arguments as to why (in Vincent’s considered opinion) there had been no homicidal ‘gas chambers’ at Auschwitz, explaining that conventional ‘Holocaust’ history is based on specious evidence. The fifth and sixth discussed the “Jewish problem” or “what to do about the Jews”. And the seventh and eighth returned to the topic of Auschwitz, the ‘gas chambers’, and broader ‘Holocaust’ themes.
Mr Mackintosh emphasised that in the case of six of these eight videos, Vincent Reynouard had not been calling for any form of action. None of the content potentially qualified as personal abuse, and none of it could be seen as “threatening”. The videos amounted to a historical critique – which might well be controversial, but not illegal in Scotland.
In the case of videos 5 and 6, Vincent was responding to a correspondent. The prosecution had chosen to isolate certain phrases out of context, but Mr Mackintosh said that once seen in context it was clear that Vincent was stating his opposition to any policy of “exterminating” the Jews.
The test that the court had to apply was not whether “reasonable people” would reject Vincent’s views, but whether these views threatened “serious disturbance to society”. Were the court to accept the prosecution’s argument, it would amount to ruling that discussion of controversial arguments regarding the ‘Holocaust’ had become a crime in the UK. Mr Mackintosh said it was open to Parliaments in London and Edinburgh to make ‘Holocaust denial’ a crime, but they had (so far) chosen not to do so.
Therefore to be criminal, Vincent’s words would have to cross a further line, a further evidential test, in order to be regarded as a “breach of the peace”.
Mr Mackintosh then turned to the alternative test, S.127 of the Communications Act. For Vincent’s videos to be considered criminal in this context, they would have to be not merely offensive, but “grossly offensive”.
Prosecutors had rested much of their argument on the precedent of the Chabloz case, as tried in the London courts during recent years – not a binding precedent, but, they argued, very much a “persuasive” precedent in this case. [Chabloz has in recent years been excluded from British revisionist circles, due to her treacherous and malicious conduct in betraying Robert Faurisson’s final meeting to the ‘anti-fascist’ publication ‘Hope not Hate’. But her earlier actions have, as we predicted at the time, served as a precedent to threaten the liberty of Vincent Reynouard.]
On appeal, Chabloz’s conduct had been found to go beyond satire, having crossed the legal line into deliberate, malicious abuse. By contrast, Mr Mackintosh argued, the judge in the present case would find (if he examined the full transcripts of Vincent’s videos) that his arguments – even when highly controversial – were delivered as a calm, academic analysis, not as crude anti-semitic abuse in the Chabloz style.
Mr Mackintosh referred to the leading S.127 case in relation to interpretation of what is “grossly offensive”, namely the Collins case, and the judgment of Lord Bingham.
This had made clear that what is “grossly offensive” has to be assessed in the context of the standards of an “open, just, multiracial society” – a contemporary context that is “reasonably enlightened, but not perfectionist”.
In other words, Mr Mackintosh emphasised, the words complained of had to cause gross offence, not simply “to people who care about the Holocaust” and who, for whatever reasons, hold different views to Vincent, but to broader society.
Were ‘Holocaust denial’ or disputing the historicity of Oradour to be deemed criminal per se, the question would necessarily arise – what about the Amritsar massacre, what about the Armenian genocide, and many other controversial historical subjects?
Mr Mackintosh concluded his argument by addressing the question of proportionality. An extradition court is required to consider whether the alleged offence is sufficiently severe to attract a custodial sentence. For example, recent instructions to the lower courts had emphasised that defendants should not be extradited for minor public order offences.
He noted that even in the Chabloz case – where the defendant had been convicted for gross offensiveness which was of a very different character to Vincent’s videos – this had not led to custodial sentences.
It would therefore, Mr Mackintosh argued, be both wrong in law and disproportionate for the Edinburgh Court to extradite Vincent Reynouard to France.
In his argument, the prosecutor (Advocate depute Paul Harvey) insisted that Vincent’s videos did pass the evidential test for the Court to regard his conduct as either (or both) a breach of the peace, and/or “grossly offensive” under S.127.
Mr Harvey invited the judge to consider Vincent’s words in one of the video transcripts, where he had stated that “there is a Jewish problem”, and that in his analysis of this problem he would “go further” than Adolf Hitler. “Naturally, the Jews exploit the situation: to dominate, even to subjugate us.”
The prosecutor described these words as “the most appalling anti-semitism”, and asked the judge to view all of the videos complained of in the French warrant, in the light of this “anti-semitism”.
Questioned by the judge on this point, Mr Harvey said that (in his submission) each video should be looked at as a separate breach of the peace offence, but should also be interpreted overall as a “course of conduct” by Vincent.
The mere fact that the UK had no special provision criminalising “Holocaust denial” did not in itself absolve the defendant. When expressed in the terms used by Vincent, Mr Harvey insisted that “Holocaust denial” could be interpreted as criminal under UK as well as French law.
Quoting the case of Rangers fan William Kilpatrick, who had posted on Facebook endorsing the sending of “bombs and bombs” to Celtic manager Neil Lennon, the prosecutor argued that under Scottish law, intending or inciting a specific action was not necessarily relevant to whether certain words were a “breach of the peace”.
Mr Harvey maintained that some of Vincent’s words in the video could reasonably have led to his being charged with a breach of the peace under Scottish law, because they were calculated to provoke a disturbance of public order.
In fact, he argued that Vincent’s words were potentially a more serious crime than breach of the peace in a football stadium: because they could be viewed online at any time, anywhere in Scotland. Incitement to specific criminal action did not, the prosecution argued, have to be proven.
Mr Harvey added that Vincent’s “crimes” had to be looked at in the context of the very different cultural context in France, and the more serious risk of “anti-semitism being incited”. While the words Vincent used could, Mr Harvey argued, be prosecutable even in Scotland, the Court should take account of the fact that in a French context, they were even more serious.
Unsurprisingly, the prosecutor rejected the defence argument that Vincent’s words were calm, academic discourse. He said they were comparable to the Chabloz case, where it had been established that once a clearly anti-semitic motive had been established, espousal of “Holocaust denial” was ipso facto grossly offensive.
The prosecutor accepted that (under UK law) not every instance of “Holocaust denial” was criminal, but he maintained that in the cases of both Chabloz and Vincent Reynouard, denying the “Holocaust” did amount to “gross offensiveness”, and therefore contravened S.127.
The prosecutor said the judge would need to apply the proportionality test very carefully. Unlike, for example, a drugs or theft case, Vincent’s criminal conduct was highly context-specific, where the appropriate sentence might differ enormously between Scotland and France. The judge should therefore “respect and give due weight” to French circumstances involving their history, and even present day “racial relations”, which meant that a French court “is justified in taking a severe approach to this”.
Given Vincent’s long and repeated record of “criminal conduct”, the prosecutor said that a custodial sentence in France was not only possible but highly likely: “I urge you to show due deference to France and their different traditions.”
In a brief reply concluding the hearing, Vincent’s counsel Fred Mackintosh said that if the judge accepted the prosecution’s argument, it would amount to saying that any “racist” statement on Facebook or YouTube, regardless of context, would be a breach of the peace. He urged the judge to reject this argument and to recognise that “Holocaust denial” when expressed in Vincent’s terms, is not a crime in Scotland – neither a breach of the peace, nor grossly offensive.
The judge said that he aimed to have read all relevant material and considered the arguments fully, in time to pass judgment on 12th October.
Clearly, the Vincent Reynouard case has become a vitally important test of whether historical revisionism will be criminalised in the UK via a ‘back door’ route, without any honest and open discussion in Parliament.
We shall make a further assessment of the broader context soon. But it should be recognised by all concerned that there will be no surrender of the basic principles involved. In the UK, Spain and Canada, European traditions of free historical inquiry are under attack. We shall defend those traditions, via any and every method that proves necessary.
