ISSN 1440-9828
                                                                    No 420   

A victory for exactitude

Töben wins London court case

by Michčle, Lady Renouf

Dr. Fredrick Töben, facing a historic extradition trial in London
Dr. Fredrick Töben

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 Ł100,000.

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.

Chris Huhne MP

The challenge ahead is as pointed out by Liberal Democrat Home Affairs spokesman Chris Huhne MP, who wrote in 24th October's Independent an article entitled Holocaust denial and a case that shows flaws in the EU - It is important to reopen the debate on arrest warrants. Mr. Huhne observed:

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 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.

Michčle, Lady Renouf
31st October 2008 



Extremists face tougher UK entry

A "presumption in favour of exclusion" is being introduced to make it easier to prevent extremists entering the UK, Home Secretary Jacqui Smith has said.

Ms Smith said it would now be up to the individual concerned to prove they would not "stir up tension" in the UK. For the first time a list of the names of those excluded - including so-called "preachers of hate" - will be published and shared with other countries.

Since 2005 230 people have been barred from entering the UK. About 80 of them are religious extremists. 

Ms Smith said: "Through these tough new measures I will stop those who want to spread extremism, hatred and violent messages in our communities from coming to our country. "Coming to the UK is a privilege and I refuse to extend that privilege to individuals who abuse our standards and values to undermine our way of life."

The changes will not require new legislation and are aimed at tackling "individuals who foster extremism or hate" - including radical Islamists, neo-Nazis and violent animal rights activists.

Shadow Home Secretary Dominic Grieve was dismissive of the changes, saying: "This announcement is more spin than substance. The real issue is preventing extremists from coming here, not advertising it after the event. "If the home secretary is at last committed to applying the powers she has, robustly and consistently, then we welcome it, but why has it taken this government so long?"

The measures announced will:

  • create a presumption in favour of exclusion for people who have engaged in fostering, encouraging or spreading extremism and hatred
  • put the burden of proof on individuals to show they have renounced previous extremist views
  • allow for the exclusion of nationals from the European Economic Area before they travel to the UK
  • increase co-operation with other agencies to improve the evidence base underpinning exclusions
  • allow for the "naming and shaming" of excluded people

The measures do not go far enough, according to Liberal Democrat home affairs spokesman Chris Huhne, who also said naming extremists was a "tawdry gimmick" that could lead to ministers being sued for libel.


Bar anyone who goes against the British norm and stirs up anti-social behaviour by advocating violent methods to change society. Alan Ward, Sydney, Australia

He said: "It is quite right to exclude anyone whose speech is likely to prove so inflammatory as to provoke violence or racial hatred, but these ideas add nothing since the government has already excluded 79 preachers of hate in three years. "The real need is for quiet intelligence to tackle British preachers of hate, and to block hate-filled internet sites. "Given the Home Office's track record of error, there must be adequate safeguards and checks to stop the exclusion of innocent people."

Keith Vaz, chairman of the Home Affairs Committee, said there should be tougher measures to help remove foreigners inciting violence who are already based in the UK. He said: "Along with being tougher on those wanting to enter the UK we must also get tougher on removing those that are already here. "If they are convicted of inciting violence or related offences, they must be removed."

Mr Vaz also said he was concerned information used to make exclusion decisions needed to be accurate, and that there needed to be a clear process in which to challenge a decision.

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