It is important to reopen the debate on arrest warrants
Holocaust denial and a case that shows flaws in the EU
Friday, 24 October 2008
The case of the odious Holocaust-denier Dr Frederick Toben is
destined to become a cause célèbre precisely because such hard cases
test fundamental liberal principles. "I disapprove of what you say,"
said Voltaire, "but I will defend to the death your right to say it."
This is my position 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. But I now find myself oddly defending Dr Toben's right to
deny that the Holocaust existed, and to refuse his extradition from
Britain to Germany under a European arrest warrant, a decision that
will be made on Monday.
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 our
courts should refuse extradition.
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 technicalities may yet stop Dr Toben's extradition. The warrant
is designed to respect each EU country's legal system by allowing
automatic extradition, although it allows British courts to assess
whether 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 it will look
behind a warrant to assess whether it should be executed. Poland
issues about a third of all European arrest warrants received in the
UK, and is said to treat abortion as murder. However, the Belgians
have said 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
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 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.
The writer is the Liberal Democrat Party's home affairs spokesman
Suspected Holocaust denier Dr Gerald Toben has won his fight against
extradition to Germany where he is wanted for allegedly publishing
anti-Semitic material on his website.
Suspected Holocaust denier Dr Gerald Toben wins extradition fight
30 Oct 2008
Dr Toben, 64, a prominent Australian academic, is wanted to stand
trial for material he published between 2000 and 2004.
The German authorities claim they are 'of an anti-Semitic and/or
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 yesterday ruled the warrant invalid
as it contains inadequate detail about the offences.
It neither states the name of the website nor where the propaganda is
said to have been published from - merely referring to the 'world-
After discharging Mr Toben, Judge Wickham granted him bail pending an
appeal by the German authorities.
But he was not expected to be released immediately, after she imposed
a series of strict conditions including a £100,000 security.
Grey wavy-haired Toben, heard the judge's decision from the glass-
fronted dock at City of Westminster Magistrates' Court.
The public gallery was packed with supporters of Toben.
Judge Wickham rejected an argument from Melanie Cumberland, for the
German authorities, that the required information could be acquired.
The judge said: "Compliance, in my view, cannot be fulfilled by a
drip-feed of information as and when the issuing authority provides
"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.
Toben has been in custody since October 1, when he was arrested at
Heathrow Airport on a flight from America, on his way to Dubai.
He was refused bail at that time.
Ms Cumberland opposed bail yesterday, but Ben Watson, defending,
successfully argued it would be 'abhorrent' to keep him behind bars
His other bail 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. These were
safeguards 'to prevent any public order act offences', said Judge
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
In 2000 he fought an order by the Human Rights and Equal
Opportunities Commission in Australia to remove its 'offensive'
The commission claimed it breached Australia's Racial Discrimination
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.
When his Heathrow plane was cleared of passengers flamboyant Toben
allegedly moved seats which officers suspected was a bid to evade
When cautioned he replied: "You can't arrest me on British soil." 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." Toben went on to claim he could not be tried in Germany
due to 'double jeopardy', referring to ongoing proceedings on the
same issue in Adelaide.
He also suggested the new warrant was a re-hash of the old matters he
was convicted of in 1999 but with a 'cyber-crime' veneer.
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