Töben's arrest 'fatally flawed', says lawyer
But a district judge in London refuses to consider
whether the
alleged Holocaust denier should be released from custody ahead of
a
hearing planned for next week.
By Joshua Rozenberg
Last Updated: 11:27AM BST 12 Oct 2008
Fredrick Töben, the alleged Holocaust denier detained
in London last
week, was arrested under a "fatally flawed" European
arrest warrant,
his counsel submitted today.
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
<http://www.telegraph.co.uk/news/newstopics/lawreports/joshuarozenberg/3132331/Man-accused-of-denying-the-Holocaust-may-escape-extradition-from-Britain.
html>
: 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.
<http://www.opsi.gov.uk/acts/acts2003/ukpga_20030041_en_2>
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
<http://www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd070228/dabas-1
..htm> .
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
<http://www.opsi.gov.uk/acts/acts2003/ukpga_20030041_en_2>
.
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.
First published October 10, 2008
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