By Philip Johnston, Last Updated: 12:01am BST 06/10/2008
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.
An Australian teacher is currently in jail in London, following his arrest at Heathrow airport by British police acting on a warrant issued by the German authorities.
Gerald Töben, 64, is wanted in Germany for the offence of “Holocaust denial”. It used to be a fundamental protection in British law that no one would be sent for trial in another jurisdiction for something that is not an offence here. It was called the principle of dual criminality. However, when the EAW was drawn up this principle was removed for a list of 32 offences, which include the crimes of “racism and xenophobia”.
These offences have no equivalent in this country; but it is now clear that denying the Holocaust, or “defaming the dead”, falls into the category. Moreover, Töben did not physically commit the alleged offences in Germany or even within the EU.
The arrest warrant, issued in 2004, alleges that he had carried out from Australia (where it isn’t a crime either) “worldwide internet publication” of material that denied, approved or played down the mass murder of Jews perpetrated by Nazi Germany during the Second World War.
A few years ago, ministers gave an assurance that a British citizen based in the UK posting similar opinions on a website accessible in Germany could not be extradited. However, the legislation left it open to the courts to decide the location of the offence. If a foreign national can be detained in prison for something that is neither a crime in his own country nor in this, there is clearly something seriously amiss, whatever you think of the individual concerned.
When the EAW came into force, ministers maintained that Britain had similar laws to Holocaust denial, such as incitement to racial hatred, but they are not the same.
Britain has no offence of “racism”, although it is unlawful to incite racial hatred in a way that could lead to a breach of public order – a law used against Islamist radicals fomenting violence on the internet. Nor is there any legal definition of “xenophobia”. In this country, it has always been the case that opinions, however objectionable and offensive, as Töben’s undoubtedly are, can be expressed freely provided they do not result in violence or public disorder.
This case exposes the fundamental problem with the European Arrest Warrant. It assumes the legal systems of all the signatory countries contain the same safeguards and reflect shared cultural priorities. But they don’t.
Most continental jurisdictions, for instance, do not have habeas corpus; so it is possible to be extradited without any prima facie evidence that a crime has been committed, and to be held for months or years while an investigation takes place before a charge is laid. Here, that cannot happen; but under the EAW, hearings are supposed to be a formality and the requesting country does not have to present evidence of a well-founded case.
Nor is the accused even allowed to argue that he will not get a fair trial; again, the assumption is that he will. It has been a long?standing principle in English law that extradition would not be allowed to a jurisdiction where the procedures were considered unjust. This is the issue in another current case involving a 19-year-old British student called Andrew Symeou, who is wanted by the Greek authorities for questioning over the death of Jonathon Hiles, 18, from Wales.
He suffered head injuries when he fell from a podium at a nightclub on the island of Zakynthos in July last year. Mr Symeou was arrested under an EAW, even though he says he was not in the club at the time. There is no reason why his word should necessarily be taken and a proper investigation is needed in order to obtain justice for the distraught family of Mr Hiles.
But that is not the point. In the pursuit of European judicial integration, a basic principle of British law, developed over centuries, is being set aside: that prima facie evidence of an offence having taken place is needed before someone is arraigned. In the Symeou case, this has not been established, yet he could face months in prison before it is; in Töben’s case, there is not even an offence to be answered under our law or that of Australia, where he now lives.
There is a way to avoid jailing someone for Holocaust denial in Britain when it isn’t a crime here – and that is to make it a crime here. This has already been proposed by the European Commission. The offence would be punished by up to three years in jail; even wearing a swastika would attract a prison sentence, which would have been bad news for Prince Harry a few years ago.
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.