Toben wins first round in court - granted £100,000 bail, pending appeal by Germany(lots of coverage)

[MikeWB]

Toben wins first round in court - granted £100,000 bail, pending appeal by Germany

http://www.theaustralian.news.com.au/st ... 01,00.html

Frederick Toben wins first round of UK extradition case

The Australian
October 30, 2008

CONTROVERSIAL Australian historian Frederick Toben has won the first round of his fight against extradition to Germany from Britain.

A London judge ruled overnight that the European arrest warrant used to detain Dr Toben in Britain for extradition earlier this month was invalid because it did not provide enough detail.

However, the case appears far from over, with lawyers representing German prosecutors, who want to try Dr Toben for his alleged anti-Semitic views, preparing to appeal to Britain's High Court.

Dr Toben's solicitor Kevin Lowry-Mullins described today's ruling as a victory and said the academic, who has been granted bail, looked forward to the High Court hearing his case.

"Dr Toben is of good cheer, (but) he realises we still have an uphill struggle," Mr Lowry-Mullins told reporters.

Dr Toben was arrested while in transit at London's Heathrow airport on October 1 under a warrant issued by Germany, which accuses him of racism and publishing anti-Semitic views.

But Westminster Magistrates Court district judge Daphne Wickham ruled the extradition could not go ahead because the warrant contained only "sparse" details about Dr Toben's alleged offences, including exactly what they were as well as where and when they took place.

"This judgment makes no determination as to whether the (alleged) conduct (of Toben) ... amounts to an extradition offence," Justice Wickham said.

"But I do find the particulars in the warrant are vague and imprecise.

"Therefore I don't find it to be a valid warrant and I can discharge the defendant."

Granting Dr Toben bail, the judge laid down a set of strict conditions including that he come up with 100,000 pounds ($247,465) in cash as security.

He must also reside at a specific address approved by British authorities, report daily to police but not use the internet or speak to the media or attend public meetings.

Dr Toben's lawyers had argued that the arrest warrant was fatally flawed because it did not detail the time and place of the alleged offences or the 64-year-old's exact involvement.

However, lawyers acting on Germany's behalf said Dr Toben should extradited so he could be put on trial for posting anti-Semetic and revisionist material on the internet between 2000 and 2004 in Australia, Germany and other countries.

Unlike in Britain, Holocaust denial is a crime in Germany and offenders can face up to five years in jail.

Dr Toben, who founded the Adelaide Institute, smiled broadly as the judge handed down her decision.

A group of about 10 of his supporters, including British Holocaust denier David Irving and former Australian beauty queen Lady Michele Renouf, also cheered the decision from the courtroom's small public gallery.

Irving said he believed the High Court would uphold the judge's decision.

"This shows that we defeated Germany again, we've defeated Europe in fact," Irving told reporters.

"We've always believed in freedom of speech in this country, no matter how crazy people's views are."

The High Court is expected to hear Dr Toben's case early next year.

AAP

Töben granted bail, pending appeal by Germany


Toben Wins Legal Fight Against Extradition to Germany

The Daily Mail (Britain)

http://www.dailymail.co.uk/news/article ... ition.html ==

Alleged 'Denier' Toben Allowed Bail, With Strict Conditions

The Telegraph (Britain)

http://www.telegraph.co.uk/news/newstop ... -bail.html

Alleged Holocaust denier allowed bail

District judge says German extradition warrant 'not valid' and must be discharged. Fredrick Töben granted bail pending appeal by Germany but on strict conditions.

By Joshua Rozenberg

Last Updated: 4:09PM GMT 29 Oct 2008

Fredrick Töben, the alleged Holocaust denier detained in London a month ago, will be released on bail if he can raise £100,000.

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 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.

In any event, it may be some days before arrangements can be made for Dr Töben's release as the district judge ordered inquiries into other passports that he may have been issued in Australia, where he has citizenship.

Ben Watson, for Dr Töben, applied for bail after the district judge at City of Westminster Court ruled that the warrant under which his client had been arrested was not valid.

This was because it did not say where and when he is alleged to have committed the offence, under German law, of Holocaust denial.

It merely referred to "worldwide internet publications" and alleged that "the offender is committing the acts in Australia, Germany and in other countries".

The court rejected an argument by Melanie Cumberland, for the German authorities, that the required information could be supplied.

The district judge said: "Compliance, in my view, cannot be fulfilled by a drip-feed of information as and when the issuing authority provides it.

"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.

Miss Cumberland said the German authorities would appeal to the High Court.

As I suggested in earlier reports, the arrest warrant may have been drafted in a deliberately vague manner.

Once the German authorities accept that the material that forms the basis of the charge was published in the United Kingdom as well as in Germany, Dr Töben may have a defence to extradition.

First published October 29, 2008.

Baroness Scotland (Attorney General) ruled out extradition for Holocaust denial - Michèle Renouf

A VICTORY FOR EXACTITUDE!

Michèle, Lady Renouf

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.

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 press report of Dr. Töben's victory:
http://www.dailymail.co.uk/news/article ... ition.html

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 £100,000.

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:

http://www.telegraph.co.uk/news/newstop ... -bail.html

Mr Rosenberg 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.

The challenge ahead is as pointed out by Liberal Democrat Home Affairs spokesman Chris Huhne MP, who wrote In last Friday's (24th October) 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 racisim 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."

øøø

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 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 ...is 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.

øøø

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.

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 Toben 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.

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.'

Michèle, Lady Renouf

German prosecutors to appeal after Toben's release - Australian Jewish News

http://www.ajn.com.au/news/news.asp?pgID=6507

NEWs (october 30, 2008)
German prosecutors to appeal after Toben's release

PETER KOHN

ADELAIDE man Fredrick Toben has won at least a temporary reprieve from being sent to Germany to stand trial for Holocaust denial.

In London's Westminster Magistrates Court, Judge Daphne Wickham ruled yesterday that a European Union arrest warrant under which Toben was picked up at Heathrow Airport on October 1 was invalid as it was not detailed enough.

The AJN understands that the German warrant, which is based on Toben's alleged violations of Germany's criminal code between 2000 and 2004, may have deliberately avoided greater detail in order to facilitate his extradition.

Holocaust denial is a crime in Germany, but not in Britain where Toben was arrested or in Australia where the offensive content was posted on his Adelaide Institute website. However, it is prohibited by Australian anti-discrimination laws.

Lawyers for prosecutors from Germany's Mannheim court are now preparing to appeal the ruling in Britain's High Court.

Meanwhile, Judge Wickham has granted Toben bail with strict conditions, including a surety of 100,000 pounds, banning him from using the internet and requiring him to report to police daily.

If Toben manages to avoid being sent to Germany and convicted there of Holocaust denial on the internet, he still faces judgement and sentencing in a contempt case now before the Federal Court of Australia.

Jeremy Jones, who was president of the Executive Council of Australian Jewry in 2002 when the Federal Court ordered Toben to remove and not replace offensive material denying the Holocaust on his Adelaide Institute website, launched the contempt action in 2006 after repeated violations

[Mac Seafraidh]

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