Töben's arrest 'fatally flawed', says lawyer

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Töben's arrest 'fatally flawed', says lawyer

But a district judge in London refuses to consider whether the
alleged Holocaust denier should be released from custody ahead of a
hearing planned for next week.

By Joshua Rozenberg

Last Updated: 11:27AM BST 12 Oct 2008

Fredrick Töben, the alleged Holocaust denier detained in London last
week, was arrested under a "fatally flawed" European arrest warrant,
his counsel submitted today.

Ben Watson tried to persuade City of Westminster Magistrates' Court
that Dr Töben should be released unconditionally and allowed to leave
the country.

But District Judge Daphne Wickham refused to hear Mr Watson's
application, pointing out that the case had been listed only for a
decision on bail.

A public prosecutor in Mannheim is seeking Dr Töben's extradition on
charges of "instigation to race hatred, insult and reviling the
memory of the dead".

The charges go back to 2004.

When the hearing opened, Melanie Cumberland, instructed by the Crown
Prosecution Service on behalf of the German authorities, told the
judge that Germany opposed bail for Dr Töben. He had a "strong
incentive to flee", she said, and no bail conditions would be

After speaking to his client, Mr Watson said the bail application
would be deferred until next Friday afternoon, when he would be able
to develop the submissions he has lodged with the court.

In his written application for his client's discharge, Mr Watson
argues that the European arrest warrant is "plainly defective"
because it does not give enough information about the conduct alleged
against his client. Without that information, the court cannot
resolve the issue I raised in my analysis last week


: did any part of Dr Töben's alleged conduct occur in the United
Kingdom? If so, that would prevent his extradition.

This is how the warrant describes the conduct alleged against Dr Töben:

"From 2000 up to this day, worldwide internet publications of
anti-Semitic and/or revisionist nature. Deliberately contrary to the
historical truth, the said publications deny, approve or play down
above all the mass murder of the Jews planned and implemented by the
National-Socialist rulers. The offender is committing the acts in
Australia, Germany and in other countries."

I surmised last week that this was alleged to amount to "racism and
xenophobia", one of the offences on the so-called European framework

It is indeed, but the conduct is also said to come within an even
more vague framework offence, that of "computer-related crime".

The warrant for Dr Töben's arrest on October 1 was issued under
section 2 of the Extradition Act 2003.


For the warrant to comply with subsection 4(c) of that section, it
must contain "particulars of the circumstances in which the person is
alleged to have committed the offence, including the conduct alleged
to constitute the offence" and "the time and place at which he is
alleged to have committed the offence".

Any warrant that does not contain this information is invalid and
"cannot be eked out by extraneous information", the law lords have
ruled in a previous case
..htm> .

But, says Mr Watson in his written argument, there is no clear
description in the warrant of the time and place at which Dr Töben is
alleged to have committed the offence. The warrant does not say where
he was when the information was published on the internet. It is not
clear whether he is alleged to have committed the offences in Britain.

It follows, Mr Watson says, that the court cannot even begin to
decide whether the German authorities can rely on the framework list
offences - as they intend to do - because the warrant fails to
specify whether any part of the conduct is alleged to have taken
place in the United Kingdom.

He also submits that the description of his client's alleged conduct
is "is simply too vague to fulfil the requirements of section 2". The
court cannot decide whether it amounts to computer-related crime;
racism and xenophobia; or an offence under English law.

On behalf of the German authorities, Ms Cumberland handed in written
submissions opposing Mr Watson's arguments. However, a senior CPS
lawyer was unable to provide a copy of them for the press.

Dr Töben's solicitor, Kevin Lowry-Mullins, told reporters that the
court would have to define "racism and xenophobia" and
"computer-related crime" before deciding whether Dr Töben's conduct
meets either of these definitions.

The solicitor also argues that Dr Töben is being prosecuted on
account of his political opinions. If established, this would be a
bar to extradition under section 13 of the Act

<http://www.opsi.gov.uk/acts/acts2003/ukpga_20030041_en_2> .

If the case is not completed on October 17, a further hearing is
planned for November 11. So far, I have heard nothing from Ms
Cumberland to persuade me that the Germans are going to win this one.

First published October 10, 2008

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