The difficult case of Frederick Toben

Frederick Toben

It is often the case that an individual case can serve as an illustration of quite a profound point, and the arrest of Dr Frederick Toben is one such. Dr Toben is an Australian citizen and was arrested at Heathrow airport earlier this month while en route from the United States to Dubai, on the strength of a European Arrest Warrant issued in Mannheim, Germany, for denial of the Holocaust.

The case raises questions at lots of different levels.

First, there is the notion of the European Arrest Warrant. The EAW has replaced the procedure of extradition among EU member states, extradition being a formal judicial process whereas the EAW is an administrative one. For extradition to take place, it is necessary for the judicial authorities in the arresting country to agree that there is a case to answer, and there is normally a hearing to confirm this. In the case of the EAW, the judicial authorities that need to be satisfied that there is a case to answer are those in the country that has issued the warrant, not the country that has made the arrest.

This makes for a swifter process of returning a wanted suspect for trial, but one can see the circumstances where it increases the risk of getting the wrong person. For example, there are three different alphabets used in the EU, so transliterating a name from one alphabet to another carries with it a risk of an error in translation. (Eurojust has multilingual translation services on hand 24 hours a day, which should reduce the possibility of mistakes being made.)

A further, and in this case important, point is that extradition can only take place where the offence alleged is also an offence in the arresting country. Countries will not extradite suspects who have, in their own eyes, not done anything wrong. This principle does not apply to the EAW, which means that people can be arrested for acts that are not crimes in the countries where they are arrested.

This departure from the principles of extradition has provoked controversy but, given the increasing freedom of movement between the different member states (people are not routinely checked as they leave and enter them), it goes some way towards redressing the balance back towards the enforcement of the law. The criminal law should be able to cross borders as effectively as the criminal: that is the ambition.

In essence, this amounts to the mutual recognition of criminal offences in the different member states, rather than their harmonisation. In general, mutual recognition is easier to implement, requiring less change on the part of each member state itself, but can lead to problems arising from differences between the different sets of national regulation. In the case of the single market, the need for a level playing field for competition has tended to favour harmonisation of regulation (although this is not always the case). When it comes to the criminal law, there are some common principles laid down regarding trial procedures, evidence and the availability of translation facilities, but for the most part member states are free to act as they wish (accepting that other member states are equally free).

This becomes an issue in the case of Dr Toben because the offence for which he has been arrested and is currently in detention in the UK is not a crime here. Holocaust denial may be disgusting but it is not actually illegal. It is a crime in Germany, though, for which the German authorities wish to prosecute him.

And this leads to the second level of interest in this case, in that the offences for which the German authorities wish to try him were not committed in Germany either. The German law on Holocaust denial makes it a crime in Germany wherever in the world it is actually carried out. Dr Toben lives and publishes his opinions in Australia, but of course his website can be seen by anyone anywhere in the world.

What is the consequence of this extension of German criminal jurisdiction? Is it right that one country can make an act a crime in every other country in the world? What happens to the idea of national control over criminal law, that is one of the reasons why there is a need for such a system as extradition in the first place?

Plainly, there is a difference, from a German point of view, between objectionable statements being made in Australia and the same statements being published on the internet where people in Germany can access them. But is there enough of a difference?

In the case of paedophilia, it is a crime under English law to engage in such acts anywhere in the world. If prosecutions have been brought already in the countries where the acts took place, then the British authorities might not bring their own charges, but these crimes are often committed in countries where the capacity to enforce such laws is weak: in those cases, the offences are so repugnant that the force of the English legal system will be brought to bear if necessary. War crimes charges may similarly be brought in the UK even if the offences are committed abroad.

As a cross-border phenomenon, paedophiles appear to make extensive use of the internet, and but their crimes are no less horrible for that. They are based on the abuse and exploitation of victims, and the publication of material on the internet is an integral stage in the acts of abuse themselves.

Is Holocaust denial to be treated in the same way as paedophilia? What are the reasons why it is a crime at all? This is the third level of interest in this case.

The heart of the argument against Holocaust denial is that, contrary to appearances, it is not a form of historical enquiry but is in fact simply the use of anti-Semitism as a political tool. A decent and tolerant community cannot function if political parties are based on such principles. (Free speech famously does not include the right to shout “fire!” in a crowded theatre.)

The use of racist speech as a form of hatred in its own right is a well-known tactic. Members of the anti-immigrant National Front in the UK used to hang round in areas with a high proportion of ethnic minorities ostensibly trying to sell their party newspapers. Now, if they were really trying to sell newspapers full of race hatred, they would not really expect to find many customers among those ethnic minorities they hated so much. No, the reason for going to Brick Lane was to put into practice the opinions expressed in the newspapers they were pretending to try and sell.

Holocaust denial has the same purpose. One does not find much serious historical interest in the issue, as the court case brought by David Irving against Penguin Books proved. Many of the people who take an interest seem to be drawn to it for reasons other than a study of history. Where those people might be so numerous and so influential as to start to bring those arguments into political discourse, then a prohibition on them might be appropriate. It never feels right to suppress a line of political argument but an urgent fear of organised anti-Semitism might make it justified.

But can that be true of political arguments posted on the internet from Australia? Can they really be said to be a threat to Jewish communities or racial tolerance in Germany? We need to be very sure of this, if there is a general presumption in favour of free speech and against censorship. My own view is that greater harm to our society will be done by trying to delete these views from the internet than by addressing them by other means. That does not mean accepting harassment and threats on our streets and in our communities, but it does imply that the internet is a somewhat different place.

If this is the case – and, given that in most countries in the world, publishing material denying the Holocaust is not an offence, this is the basis on which we have to proceed – what does this say about the fate of Dr Toben in Bedford jail? What does this say about the European Arrest Warrant and the mutual recognition of criminal offences?

I think the answer is that the mutual recognition of criminal offences within the EU is incomplete. Not only must each member state recognise what each other has defined as a crime, each must also recognise those things that have not been defined as crimes.

If one accepts, as most people do, that criminal law should be a national and not a European competence within the EU, it follows that one must accept that there might be acts defined as crimes which one might not think are wrong. The simple answer in such cases is, when in that country, be careful what you do. There are stories every summer of tourists who unknowingly get into trouble, because the standards of the law they are used to in their home countries do not apply abroad. That’s one of the things about foreign countries: things are sometimes different from the way they are at home.

But the mutual recognition of criminal offences implies some kind of territorial bargain between the different member states, each recognising the proper extent of the jurisdiction of the other. The attempt to assert an extra-territorial jurisdiction by the court in Mannheim is a violation of this territorial bargain, and that is the cause of the trouble.

Eurosceptics are happy to blame the system of European arrest warrants, and by extension the EU as a whole, while some liberals object to the criminalisation of Holocaust denial. The problem is really a mismatch between competence and level – the failure to apply the principle of subsidiarity – in trying to assert a universal jurisdiction at national level. As a result, and with extreme reluctance, I think that Dr Toben ought to be let go.

The fight against racism and anti-Semitism will have to contend with this disgusting and vile sub-culture for a while longer. We don’t yet have the legal instruments to deal with it properly, and as long as criminal law remains the exclusive preserve of national jurisdictions, the era of the internet means that we never will.

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