A vital legal precedent has been
dispelled! On Wednesday 29th October at 2pm, within ten minutes,
a victory for exactitude was declared! The German onslaught -
charging with a stick and balloon on a trojan horse to breach
the bastion of British jurisprudence - fell at the first professional
lance, to the British empirical tradition. Defeat for what the
Deputy Senior District Judge at the City of Westminster Magistrates'
Court on London's famous Horseferry Road called "vague and
imprecise" concepts which "muddy the waters" of
the judicial process.
A European Arrest Warrant was executed
against a peaceful Australian academic, Dr. Fredrick Töben
whilst he sat on an American Airlines aircraft in transit at Heathrow
airport. Since October 1st, he has been sitting in a Wandsworth
prison cell, facing extradition and five years in Mannheim prison,
Germany's dungeon for political prisoners of conscience. The case
has prompted concern that European laws restricting academic freedoms
might be extended to Britain via the back door of the European
Arrest Warrant, following the ongoing attempts by German Justice
Minister Brigitte Zypries to use the front door approach and force
all European governments into adopting German-style anti-revisionist
laws.
Brigitte Zypries
However Dr. Töben and his defence
team succeeded in having the extradition process discharged under
Section 2 of the Extradition Act, because the warrant was not
particularised and the conduct alleged was vague.
See the British and world press reports
of Dr. Töben's victory, including:
Dr. Töben's victory clearly wrong footed
the Daily Mail's journalists. First described by the
Mail at 5pm in their story "Töben wins his
case!" as "a prominent Australian academic", just
over two hours later it had been amended to "controversial
Australian academic".
Then, within another hour the Mail backtracked
again to describe Dr Töben as just plain "Australian
academic", the qualifying adjectives having proved too problematic...
The court now awaits an appeal by the German prosecuting
authorities, who are represented in the U.K. by the Crown even
though Dr. Töben's alleged conduct does not constitute an
offence in the U.K. In the meantime, Dr. Töben has been granted
bail but with stringent bail conditions, the most challenging
being a cash security of £100,000.
Lady Renouf being interviewed by ABC
Eight journalists were present in court to hear
the judgment; first to arrive was Daily Telegraph legal columnist
Joshua Rozenberg, who had already written two informed articles
on earlier stages of Dr. Töben's case. And
in his latest Mr Rozenberg did well in clarifying that:
The sum of money is described as "security"
rather than a surety because it must be lodged with the court
and not merely pledged. Other bail conditions imposed by [Deputy
Senior] District Judge Daphne Wickham are residence at an approved
address, daily reporting to the police, surrender of all passports,
no participation in public meetings, no media interviews and
no use of the internet — even to receive information.
It is difficult to see how this last condition could be enforced.
The Daily Mail did well to acknowledge
the argument over bail, writing:
Ms Cumberland opposed bail today but Ben
Watson, defending, successfully argued it would be 'abhorrent'
to keep him behind bars any longer.
The prosecution will appeal to the High Court,
which must be within seven days, including the day of the hearing,
and our defence team will challenge that appeal.
During the brief chance one had to exchange a
few words through the glass slit of his secure dock, Dr Töben
reassured me, that as his proposed bail addressee, he would not
let me down. Needlessly, for I know that we both wish this law
to reach due free and open public attention and if necessary to
take the battle for normal debate up to the House of Lords. A
veteran who has long challenged the seemingly invincible debate-deniers,
this St. George is in good spirits. Dr. Töben realises the
challenge ahead, but is confident that his case will be presented
forcefully and professionally so that every expert opportunity
will be advanced on his behalf.
The warrant was principally designed to
ensure swift extradition between member states for offences
such as murder, human trafficking, money laundering, organised
or armed robbery, rape and terrorism. When the legislation was
considered, the Commons committee warned about the inclusion
of racism and xenophobia in the list of offences where it was
unnecessary to prove it was against the host and issuing country's
law, precisely because of the differences in the interpretation
from one EU country to another. The cleanest solution would
be to exclude racism and xenophobia. ...In Britain we value
freedom of speech too highly to see it sacrificed... Strength
of argument ... will defeat the Holocaust deniers.
Made possible under a European Arrest Warrant
brought by a German court for what that country, and not this
country, deems an opinion crime on the Internet, namely, peaceful
academic historical source-criticism of the "Holocaust",
we seemed (and may still be) on the brink of losing that most
precious treasure of our Classical culture, respect for civil
debate. Via this EAW abuse, a backdoor was being forced open.
How well is our parliament standing guard?
Baroness Scotland
- Attorney General's reputation on the line
Baroness Scotland QC was the Home Office minister
who introduced an amendment to the Extradition Bill on 1st July
2003. She assured Parliament that this amendment "put it
beyond any doubt that where any part of the conduct has occurred
in the UK, we can extradite only if the dual criminality requirement
has been satisfied." To clarify the matter further she made
special reference to the very offence with which Dr. Töben
is now charged.
Baroness Scotland told Parliament:
Holocaust denial ...is a very particular
offence. We would say that those engaging in that endeavour
in part in this country would not be capable of being extradited
as the offence would in part have allegedly been committed in
this country, and in this country it is not an offence. So we
would not extradite those involved in it.
Yet five years later Baroness
Scotland is now the Attorney General, ultimately in charge
of the Crown Prosecution Service, whose staff have liaised with
the German authorities to expedite the very extradition which
Baroness Scotland specifically promised could not take place.
Gareth Julian, head of extradition at the CPS and ultimately answerable
to Baroness Scotland, has been in court throughout the proceedings
against Dr. Töben.
If Dr. Töben is extradited, it will be clear
that Baroness Scotland misled Parliament as to the effect of the
Extradition Bill which she piloted and the amendment which she
introduced. Her position as Attorney General will be untenable,
as British citizens and overseas visitors could have no confidence
in the Crown's senior law officer. If she has any sense of personal
honour or constitutional propriety, Baroness Scotland will surely
be considering her position.
So much for ministerial responsibility, but today's
decision by District Judge Wickham is a serious indictment not
only of the German prosecuting authorities who issued the European
Arrest Warrant in 2004, but of the UK's Serious
and Organised Crime Agency, which certified the warrant nine
months ago and has now seen it thrown out of court.
When the UK first incorporated the European Arrest
Warrant into UK law at the end of 2003, it designated the National
Criminal Intelligence Service (NCIS) as the "central authority"
for processing such warrants. When in 2006 NCIS was amalgamated
with the National Crime Squad and relevant sections of the Immigration
and Customs services to create the Serious and Organised Crime
Agency, this SOCA took over the role of UK central authority for
European Arrest Warrants.
Crown counsel Melanie Cumberland and Gareth
Julian, head of extradition for the CPS, tried to evade the press
after their court defeat
The legal work involved in extraditing suspects
under an EAW is handled by the Special Crime Division of the Crown
Prosecution Service whose members, according to the
attached (partially declassified) report for the EU Council
of Ministers, act together with a team of four barristers from
private practice as agents and advocates for the issuing (in this
case German) authorities.
According to the 2007 EU Council of Ministers
report:
Following an arrest a Special Crime Division
prosecutor will examine the EAW to seek to pre-empt any possible
legal challenges and to confirm that it complies with section
2 of the domestic law. Should any discrepancies come to light
the prosecutor will e-mail a written advice via SOCA to the
issuing Member State specifying the remedial steps considered
necessary. The purpose of this examination is to advise the
issuing JA as to the case's prospect of success and to identify
at the earliest possible stage any further information which
may be considered prudent to obtain to afford the best possible
chance of winning at court.
In other words the EAW must first be certified
by SOCA, then examined by the Special Crime Division of the CPS.
A colossal waste of public money and court time (not to mention
the unfair detention of Dr Töben) has resulted from SOCA
wrongly certifying this warrant and the CPS then failing to resolve
what the district judge has since found to be serious failings
in the warrant.
Gareth Julian, head of extradition at the Crown
Prosecution Service, has been closely involved in the Töben
case at every stage and has attended every court hearing. He was
one of the key officials interviewed for the EU
Council of Ministers report attached and quoted above.
Defence solicitor Kevin Lowry-Mullins
(left) issues a press statement following Dr Töben's
victory
Despite the SOCA certification of the report,
and despite all of the CPS liaison with the German authorities,
Deputy Senior District Judge Wickham dismissed the warrant with
rigorous exactitude befitting her quizzical Miss Marple-esque
demeanour:
I find that the particulars are vague and
imprecise, I find the warrant invalid and therefore discharge
the defendant.
