Philip Johnston
London Telegraph
October 6, 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.


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