German-Australian revisionist Dr.
Fredrick Töben was arrested at London's Heathrow Airport
on 1st October, seized from a plane while in transit from the
U.S.A. to Dubai.
Dr. Töben is being held under
a European Arrest Warrant, in direct contravention of pledges
made by British government ministers when the EAW system was being
introduced.
If extradited to Germany (for an
alleged 'crime' which is no offence under U.K. law) Dr. Töben
faces a possible five year jail sentence.
After hearing of Dr. Töben's
arrest, and that he was at first representing himself, Lady Renouf
arranged for specialist extradition lawyers (solicitor Kevin Lowry-Mullins
and barrister Ben Watson) to take on this historic case.
On 3rd October the first day of the
case ended with a date being set for a bail hearing the following
Friday (10th October). It is then expected that further trial
hearings will take place on 17th October and 11th November.
A unique ten minute video report
made by Telling Films at London's Horseferry Road court - including
interviews with Dr. Töben's solicitor Kevin Lowry-Mullins
and court observers David Irving and Lady Renouf is now available
below. (Traffic noise early in the film soon settles down to allow
audibility!)
Mr. Huhne said that since "Holocaust
denial" is not a criminal offence in the U.K., extradition
would undermine British traditions of free speech.
During the weekend more commentators
have come out in opposition to the Anglo-German prosecutors and
their efforts to jail Dr. Töben.
The Sunday
Telegraph's
leading article on 5th October described the arrest and attempted
extradition as "a blatant attack on free speech", adding:
Free speech cannot flourish when
the individual may express only those opinions which the state
has decided it will permit. Once that happens, it evokes George
Orwell's nightmare of the Ministry of Truth, in which the state
throttles all independent thought and destroys free expression
completely.
Mr. Johnston's analysis goes to the
heart of the issue: Here is something the Government told us would never happen.
When Britain signed up to the European Arrest Warrant (EAW) six
years ago, critics pointed out that an individual could be extradited
to another EU state to face prosecution for something that is
not a crime in Britain and had not even been committed in the
requesting country. Ministers dismissed such concerns as fanciful,
but it has come to pass.
...The EAW was rushed through
in the aftermath of September 11, ostensibly to make it easier
to extradite terrorist suspects, but in reality to speed the creation
of a common European judicial area. It is now being used as cover
for the extension of thought crimes.
through gritted teeth, I have
to say that I am totally against the extradition of this man and
appalled at the political and legal developments that have brought
these moves about.
If Töben is extradited,
this will mean that Britain will be treating as a criminal suspect
someone who is accused of behaviour which is not regarded as a
crime in this country. That breaches an ancient principle of our
law - which we so regrettably junked when we signed up to the
European arrest warrant.
Daily Telegraph legal editor
Joshua Rozenberg, who happens to be the husband of Ms. Phillips,
has written two articles so far indicating that the Töben
defence team have an excellent case. After
the initial hearing on 3rd October Mr. Rozenberg wrote:
...it seems to me that Dr Töben’s
alleged conduct may not be an extradition offence after all, even
if it comes within the definition of racism and xenophobia. As I understand it, he is accused of publishing anti-Semitic
or revisionist material on his website. That website is registered
in Australia. It can be accessed in Germany, of course, and so
its contents are certainly published there. But if it is published in Germany, it is also published
in Britain. And conduct is an extradition offence under section
64(2)(a) of the Act only if “the conduct occurs in the category
1 territory and no part of it occurs in the United Kingdom”.
Updating
his readers after the 10th October bail hearing, Mr. Rozenberg
added: Dr Töben’s solicitor, Kevin Lowry-Mullins, told
reporters that the court would have to define “racism and
xenophobia” and “computer-related crime” before
deciding whether Dr Töben’s conduct meets either of
these definitions.
The solicitor also argues that Dr Töben is being prosecuted
on account of his political opinions. If established, this would
be a bar to extradition under section 13 of the Act.
If the case is not completed on October 17, a further hearing
is planned for November 11. So far, I have heard nothing from
Ms Cumberland to persuade me that the Germans are going to win
this one.
Dr. Töben was denied bail at
the hearing on October 17th, but his barrister Ben Watson was
able to put the case for the extradition warrant to be thrown
out of court. The key points in this application to strike out
the warrant (using Section 2 of the Extradition Act) were:
the warrant fails to specify exactly what Dr.
Töben is accused of, mentioning that Internet postings
denied, approved or played down the Holocaust without explaining
which of these categories Dr. Töben's articles fell into;
it fails to specify where and when Dr. Töben
posted offending articles on the Internet.
These issues which the warrant fails
to clarify would in Mr. Watson's submission be crucial to Dr.
Töben's defence. As explained above, a key argument for the
defence is that "Holocaust denial" is not an offence
in the U.K., unless Dr. Töben had actually approved of the
Holocaust, in which case he might perhaps have broken U.K. law
on inciting racial or religious hatred.
The location of the alleged crime
is similarly crucial - since in Mr. Watson's submission Dr. Töben
could only be extradited if he had committed the offence while
in Germany.
So the arguments presented in this
application to dismiss the warrant point towards some of the arguments
to be developed later if the case proceeds to a full hearing.
Some of the implications of such a hearing were explored again
by the Liberal Democrat MP and Home Affairs spokesman Chris
Huhne MP in an article
for the Independent on 24th October, while the broader
question of legal restrictions on historical argument was pursued
by Timothy
Garton Ash in an article for the Guardian
and Los Angeles Times.
As Lady
Renouf reports here, District Judge Wickham upheld Mr Watson's
application and dismissed the German warrant on 29th October,
but the German authorities (through their Crown counsel representative)
are appealing to reinstate the warrant.
Further comment on the case will
be withheld until after additional legal issues are resolved -
watch this space!
