Ben Watson tried to persuade City of Westminster Magistrates’ Court that Dr
Töben should be released unconditionally and allowed to leave the country.
But District Judge Daphne Wickham refused to hear Mr Watson’s application,
pointing out that the case had been listed only for a decision on bail.
A public prosecutor in Mannheim is seeking Dr Töben’s extradition on charges
of “instigation to race hatred, insult and reviling the memory of the dead”. The
charges go back to 2004.
When the hearing opened, Melanie Cumberland, instructed by the Crown
Prosecution Service on behalf of the German authorities, told the judge that
Germany opposed bail for Dr Töben. He had a “strong incentive to flee”, she
said, and no bail conditions would be sufficient.
After speaking to his client, Mr Watson said the bail application would be
deferred until next Friday afternoon, when he would be able to develop the
submissions he has lodged with the court.
In his written application for his client’s discharge, Mr Watson argues that
the European arrest warrant is “plainly defective” because it does not give
enough information about the conduct alleged against his client.
Without that information, the court cannot resolve the issue I raised in my
analysis
last week: did any part of Dr Töben’s alleged conduct occur in the United
Kingdom? If so, that would prevent his extradition.
This is how the warrant describes the conduct alleged against Dr Töben:
“From 2000 up to this day, worldwide internet publications of anti-Semitic
and/or revisionist nature. Deliberately contrary to the historical truth, the
said publications deny, approve or play down above all the mass murder of the
Jews planned and implemented by the National-Socialist rulers. The offender is
committing the acts in Australia, Germany and in other countries.”
I surmised last week that this was alleged to amount to “racism and
xenophobia”, one of the offences on the so-called European framework list. It is
indeed, but the conduct is also said to come within an even more vague framework
offence, that of “computer-related crime”.
The warrant for Dr Töben’s arrest on October 1 was issued under section
2 of the Extradition Act 2003.
For the warrant to comply with subsection 4(c) of that section, it must
contain “particulars of the circumstances in which the person is alleged to have
committed the offence, including the conduct alleged to constitute the offence”
and “the time and place at which he is alleged to have committed the offence”.
Any warrant that does not contain this information is invalid and “cannot be
eked out by extraneous information”, the law lords have ruled
in a previous case.
But, says Mr Watson in his written argument, there is no clear description in
the warrant of the time and place at which Dr Töben is alleged to have committed
the offence. The warrant does not say where he was when the information was
published on the internet. It is not clear whether he is alleged to have
committed the offences in Britain.
It follows, Mr Watson says, that the court cannot even begin to decide
whether the German authorities can rely on the framework list offences — as they
intend to do — because the warrant fails to specify whether any part of the
conduct is alleged to have taken place in the United Kingdom.
He also submits that the description of his client’s alleged conduct is “is
simply too vague to fulfil the requirements of section 2”. The court cannot
decide whether it amounts to computer-related crime; racism and xenophobia; or
an offence under English law.
On behalf of the German authorities, Ms Cumberland handed in written
submissions opposing Mr Watson’s arguments. However, a senior CPS lawyer was
unable to provide a copy of them for the press.
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.
Extradition will make Dr Toben a
martyr
The European Arrest Warrant is a valuable
tool, writes Chris Huhne, but it should not be used to restrict freedom
of expression
The case of the odious Dr
Frederick Toben is destined to become a cause celebre precisely because such
hard cases test fundamental liberal principles. ‘I disapprove of what you say’
goes the maxim, ‘but I will defend to the death your right to say it.’ My
position is the same on Dr Toben. Dr Toben’s views about the Holocaust are
offensive, ugly and wrong. But freedom of speech is the cornerstone of liberal
democracy without which all the other freedoms flounder. We restrict that
freedom at our peril and only in extreme circumstances (such as incitement to
racial hatred and violence).
Much of my political life I have spent fighting racism including
anti-Semitism. I was proud to be a member of the path-breaking all-party
parliamentary inquiry into anti-Semitism in 2006, and to champion practical
measures to tackle its growth in Britain. But I now find myself oddly defending
Dr Toben’s right to deny that the Holocaust happened, and to refuse his
extradition to Germany under a European Arrest Warrant.
In Dr Toben’s case, the European Arrest Warrant is being used to detain
someone who lives in Australia and who was changing planes at Heathrow, but is
accused of the offence of holocaust denial in Germany. Dr Toben has not
committed an offence under British law or indeed under the law of 17 of the 27
European Union member states. I respect the right of Germany, Austria and others
to criminalise Holocaust denial, but I do not want to imitate them. That is why
the courts should refuse extradition when they consider the matter today
(Friday).
The legal controversy does not end with the use of the warrant. Dr Toben is
accused in Germany but his offence is to post on an Australian website. Germany
has taken on itself the role of censor, because of the capacity to download
content in Germany. It is hard to see where such an attempt to extend
jurisdiction might end, or what its chilling effects on freedom of speech might
ultimately be.
The legal technicalities may yet stop Dr Toben’s extradition. The arrest
warrant is designed to respect each European Union country’s legal system by
allowing automatic extradition, although it allows British courts to assess
whether someone’s fundamental rights are being challenged. A clause in the
legislation also allows our courts potentially to refuse extradition because the
offence was committed outside the territory of the issuing member state, and
does not allow prosecution here.
At least one member state — Belgium — has already said that it will look
behind a warrant to assess whether it should be executed. Poland issues about a
third of all European arrest warrants, and are said to treat abortion as murder.
However, the Belgians have said that they will not execute warrants for abortion
or euthanasia. Belgium’s attitude provides a precedent for refusal.
Whatever the outcome of Dr Toben’s case, though, it highlights why it is
important to reopen debate on the arrest warrant. I am not arguing, as the
Conservatives do, that it should be ended. In a globalised criminal world, it
has proved far too useful in extraditing one of the London bombers from Italy
and in shutting down the old Costa del Crime in Spain. In the vast majority of
cases, the EU arrest warrant is a good example of how member states can work
together to tackle problems much more effectively.
The arrest warrant is extradition for the Ryanair age. If criminals can
re-emerge hundreds of miles away in a different jurisdiction within hours of a
crime, the state must be able to pursue offenders without the interminable
bureaucracy that is such a feature of traditional extradition. But countries
must be able to trust each other’s legal systems and the responsible use of the
warrant, or the political support for the warrant will wither.
The warrant was principally designed to ensure swift extradition between
member states for core 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 differences in
interpretation from one EU country to another.
The cleanest solution would be to exclude racism and
xenophobia. But there may be other solutions that respect the essential
differences in history and culture from one member state to another. In Britain,
we value freedom of speech too highly to see it sacrificed because of the racist
views of an oddball academic. Nor should we turn Dr Toben into a misplaced
martyr. Strength of argument, widespread outcry and ridicule will defeat the
Holocaust deniers. Let us not dignify their status or their argument with
prosecution. (http://www.indexoncensorship.org/?p=671)
Aussie awaits German extradition verdict
October
18, 2008
Australian historian Dr Fredrick Toben will remain behind bars in Britain
until October 29, when a judge decides whether the alleged Holocaust denier will
be extradited to Germany.
The academic, 64, was arrested while in transit at Heathrow Airport on
October 1 under a European Arrest Warrant (EAW) issued by Germany, which wants
to try him for his alleged anti-Semitic views.
On Friday at City of Westminster Magistrates Court, District Judge Daphne
Wickham remanded Toben in custody until October 29, when she will announce her
decision.
Earlier Toben's lawyer Ben Watson told the court that the EAW under which his
client had been arrested contained critical flaws because it did not detail the
time, place and degree of participation relating to the alleged offences.
"This is simply so vague. It could be any statement on the Internet," he
said.
"One doesn't even know the virtual location of this offence.
"There's always a risk that given the lack of particulars that they have got
the completely wrong person."
But Melanie Cumberland, representing the German authorities, said the warrant
showed that Toben had posted anti-Semitic and revisionist material on the
Internet between 2000 and October 28, 2004 in Australia, Germany and other
countries.
"We say that the conduct set out in the EAW is sufficient," she said.
"Dr Toben is under no apprehension as to what he's sought for."
In the application for his client's bail, Mr Watson said Toben had never
sought to cause offence by his views.
He added: "He's not left wing or right wing or a nationalist. In fact he's
never been a member of a political party. He's an academic - pure and
simple."
Mr Watson added that the court had been provided with an address for Toben
from Australian beauty queen Lady Michele Renouf, now based in London. Lady
Renouf, who was present for Friday's hearing and sat next to British Holocaust
denier David Irving, was described in court as a supporter of the cause.
However, District Judge Wickham opposed bail after Miss Cumberland told the
court that Toben was a flight risk and had previously travelled only to
countries where he believed himself (to be) immune to extradition.
The court was told that Toben had flown from Chicago and was on a stopover in
London before heading to Dubai when he was detained.
He and his wife had also been planning to visit South Africa and were not due
back in Brisbane until November 6.
Unlike in Britain, Holocaust denial is a crime in Germany and offenders can
face up to five years prison.
But Toben argues he should not be extradited there as he will not receive a
fair trial.
© 2008 AAP (http://news.smh.com.au/world/aussie-awaits-german-extradition-verdict-20081018-53ef.html)
Alleged Holocaust denier allowed bail
District judge says German extradition warrant ‘not valid’ and must be
discharged. Fredrick Töben granted bail pending appeal by Germany but on strict
conditions.
By Joshua Rozenberg, Telegraph (London) 29 Oct 2008
Fredrick Töben, the alleged Holocaust denier detained in London a month ago,
will be released on bail if he can raise £100,000.
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 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.
In any event, it may be some days before arrangements can be made for Dr
Töben’s release as the district judge ordered inquiries into other passports
that he may have been issued in Australia, where he has citizenship.
Ben Watson, for Dr Töben, applied for bail after the district judge at City
of Westminster Court ruled that the warrant under which his client had been
arrested was not valid.
This was because it did not say where and when he is alleged to have
committed the offence, under German law, of Holocaust denial.
It merely referred to “worldwide internet publications” and alleged that “the
offender is committing the acts in Australia, Germany and in other countries”.
The court rejected an argument by Melanie Cumberland, for the German
authorities, that the required information could be supplied.
The district judge said: “Compliance, in my view, cannot be fulfilled by a
drip-feed of information as and when the issuing authority provides it.
“I find that the particulars are vague and imprecise, I find the warrant
invalid and therefore discharge the defendant.”
She added that she had not been required to decide at this stage whether the
alleged crimes were valid extradition offences.
Miss Cumberland said the German authorities would appeal to the High Court.
As I suggested in earlier reports, the arrest warrant may have been drafted
in a deliberately vague manner.
Once the German authorities accept that the material that forms the basis of
the charge was published in the United Kingdom as well as in Germany, Dr Töben
may have a defence to extradition.
(http://www.telegraph.co.uk/news/newstopics/lawreports/joshuarozenberg/3279956/Alleged-Holocaust-denier-allowed-bail.html)
Suspected Holocaust denier wins his legal fight against extradition after
judge throws case out of court
By Charlotte Gill, Daily Mail (London) 30 October 2008
An alleged Holocaust denier has won his fight against extradition
to Germany.
Dr Gerald Toben, 64, is accused of publishing anti-Semitic material on his
website.
The Australian academic is wanted in Germany to stand trial for posting the
alleged items between 2000 and 2004.
The German authorities claim they are 'of an anti-Semitic and/or revisionist
nature'
Suspected Holocaust denier Dr Gerald Toben walked free
from court today in London after a judge threw out an extradition bid from
Germany where he is wanted for publishing anti-Semitic material on his website
In the European Arrest Warrant issued in October 2004, he is accused of
approving of or playing down the murder of the Jews by the Nazis.
But District Judge Daphne Wickham ruled the warrant invalid today at the City
of Westminster Magistrates' Court in London, saying it contained inadequate
detail about the offences.
It neither states the name of the website nor where the propaganda is said to
have been published from - only referring to the 'world-wide internet'.
After discharging Toben, Judge Wickham granted him bail pending an appeal
after imposing strict conditions which include a £100,000 security.
Other conditions include residence at an approved address, written
confirmation from the Australian High Commission of which passports he holds,
and not to access the internet.
He is also banned from giving press interviews.
Judge Wickham added that she had not been required to decide at this stage
whether the alleged crimes were valid extradition offences.
Grey wavy-haired Toben, smartly dressed in a suit, appeared pleased on
hearing the judge's decision from the glass-fronted dock at City of Westminster
Magistrates' Court.
The public gallery was packed with supporters of Toben.
Toben claims he will not get a fair trial in Germany.
The controversial author was reportedly jailed in 1999 at Mannheim prison for
breaching Germany's Holocaust Law Section 130, prohibiting anyone from 'defaming
the dead'.
Toben's Adelaide Institute website has drawn criticism for many years.
In 2000 he fought an order by the Human Rights and Equal Opportunities
Commission in Australia to remove its 'offensive' content.
The commission claimed it breached Australia's Racial Discrimination Act.
Toben completed his Dr of Philosophy course at the University of Stuttgart in
1977 and taught schools and colleges all over the world.
He founded the Adelaide Institute and is the author of at least eight books
on education, political science and history.
At an earlier hearing he accused the 'world press' of wrongly portraying him
as 'horrible, terrible, vicious...I must respond to that, because this is
nonsense.'
Attempting to reassure the court he would not jump bail, he added: 'The world
is my prison. 'I'm well known and to suggest there's no honour in my person is
to slander me.'
(http://www.dailymail.co.uk/news/worldnews/article-1081579/Suspected-Holocaust-denier-wins-legal-fight-extradition-judge-throws-case-court.html)
AUSTRALIAN Holocaust denier Fredrik Toben has won his
legal battle with the German Government after it ended its attempt to extradite
him from Britain.
German prosecutors have withdrawn their appeal against a British court's
refusal last month to extradite the controversial historian, who was detained at
Heathrow airport on a European arrest warrant for denying the extent of Adolf
Hitler's crimes against the Jews.
Dr Toben's solicitor Kevin Lowry-Mullins said early today that he had signed
a consent order with the German Government to end the action against his client.
Dr Toben had been expected to face a tough legal fight over his extradition
early next year in the High Court inLondon.
He was arrested while in transit atLondon's Heathrow airport on October1
under a warrant accusing him ofracism and publishing anti-Semitic views.
But Westminster Magistrates Court district judge Daphne Wickham ruled the
extradition could not go ahead because the warrant contained only "sparse"
details about Dr Toben's alleged offences, including exactly what they were, as
well as where and when they took place.
"This judgment makes no determination as to whether the (alleged) conduct (of
Toben) ... amounts to an extradition offence," Judge Wickham said.
"But I do find the particulars in the warrant are vague and imprecise.
Therefore I don't find it to be a valid warrant and I can discharge the
defendant."
Granting Dr Toben bail, the judge laid down a set of strict conditions
including that he come up with pound stg. 100,000 ($247,465) in cash as
security. He had to reside at a specific address approved by British authorities
and report daily to police but not use the internet, speak to the media or
attend public meetings.
Dr Toben's lawyers had argued that the arrest warrant was fatally flawed
because it did not detail the time and place of the alleged offences, nor the
64-year-old's exact involvement.
Lawyers acting on Germany's behalf had said Dr Toben should be extradited so
he could be put on trial for posting anti-Semitic and revisionist material on
the internet between 2000 and 2004 in Australia, Germany and in other countries.
The case caused alarm in Britain about freedom of speech because, unlike in
Australia and Britain, Holocaust denial is a crime in Germany and offenders can
face up to five years in jail. Dr Toben, who founded the Adelaide Institute, was
supported during his hearing by supporters including British Holocaust denier
David Irving and former Australian beauty queen Michele Renouf.
When Dr Toben was released, Mr Irving said: "We defeated Germany again; we've
defeated Europe in fact. We've always believed in freedom of speech in this
country, no matter how crazy people's views are."
German prosecutor Andreas Grossmann, the Mannheim district prosecutor
handling Dr Toben's case, had told The Australian that he expected Dr Toben to
be on trial in Germany early next year.
Mr Grossmann also warned that, although most prisoners in Germany served a
third to a half of their sentences, the stubborn refusal of long-term Holocaust
revisionists to recant their views meant they usually failed to win parole.
"These people have little chance of getting out before the end of their full
sentence," Mr Grossman said.
As a foreign citizen, Dr Toben would normally be sent back to Australia
halfway through any sentence to serve the remainder of his term, but that move,
too, would be threatened by a refusal torecant.
(http://www.theaustralian.news.com.au/story/0,25197,24684208-2702,00.html)
Congratulations to Dr.
Toben!!!
PS: Please note, the "free press" in Germany did not mention the whole case at all. Imagine, what the
headlines would have been, if Dr. Toben was extradited. Write to German
newspapers and confront them!
The Aftermath: Dr. Toben
fights back
Dr.
Töben and Lady Renouf at a champagne reception on the evening of his release
Media Conference
Announcement
Date: Monday 24th November 2008
Time: 2pm
Venue: contact Lady Renouf 0207 460 7453 between 10-12 am, thereafter mobile
07903133584, Monday
Subject: Töben Extradition - criminalising history in Europe's courts
The Fredrick Töben Defence Committee will hold a media
conference at 2pm on Monday 24th November to discuss the serious implications
for Britain and Europe of Dr. Töben's arrest and the attempt to extradite him to
Germany, which failed in the High Court this week.
Until a few days ago Dr. Töben was facing a five year jail sentence.
The public prosecutor in Mannheim, Germany, had openly boasted that this
Australian academic, who had broken no U.K. law, would almost certainly receive
and serve the maximum sentence due to his failure to "recant" historical
opinions which the German state chooses to criminalise.
Dr. Töben had been arrested on 1st October while in transit at Heathrow
Airport and held in prison for fifty days on a European Arrest Warrant. At
Monday's media conference questions will be raised about the position of the
Attorney General, Baroness Scotland, who had personally guaranteed to Parliament
that no one in such cases would be extradited to Germany, then had allowed this
arrest and extradition procedure to go ahead. Also under scrutiny is the
position of Mr. Gareth Julian, Crown Prosecution Service head of extradition,
who permitted a serious waste of public money as well as a grave injustice by
permitting this process to carry on for two months, despite the inadequacy of a
warrant for which the Crown is unable even to mount a case on appeal.
The function of Scotland Yard's Serious and Organised Crime Agency, which
improperly certified the warrant and liased with German prosecutors, is also
under an embarrassing cloud after the prosecution's ignominious retreat.
Aside from these questions of ministerial dishonour and bureaucratic
incompetence on the grossest scale, there are serious issues of principle at
stake in the Töben case, which would have taken the case as far as the House of
Lords had German prosecutors been capable of constructing a valid arrest
warrant.
Is the expansion of the European Union into the sphere of judicial affairs
now allowing German law to be imposed even on passengers transiting Heathrow
Airport? Is Germany's law restricting research and source critical
interpretation of Holocaust history now being extended into Britain, not through
Act of Parliament, but via a procedural back door? Most important of all - what
is this "revisionism" which so many European states wish to criminalise, and why
should the stakes be so high that an academic dispute results in long prison
sentences imposed on authors, publishers and even their lawyers?
Monday's media conference will address these questions, and outline the next
stage in the conflict between European criminal law and the freedom of academic
research. A new initiative in U.K. education policy now seems to be governed by
the same principles which underlie German criminal law, and which were spelled
out in Guidelines for Teaching about the Holocaust at the Stockholm
International Forum
2000: "Care must be taken not to give a platform for deniers... or seek to
disprove the deniers' position through normal historical debate and rational
argument".
International guests at the media conference will explain how revisionists
intend to respond to these new challenges, whether in the courtroom or the
classroom, while civil libertarians will examine the threat to Europe's
traditions of sceptical enquiry.
www.jailingopinions.com/tobenvictory.htm
See up-dated info at http://www.jailingopinions.com/toben.html
See up-dated info in German at http://www.nordbruch.org/artikel/aFestnahmeToben.html
See
history of Toben's legal battle since 2006 at http://www.adelaideinstitute.org/LEGAL2006/contents.htm
