Gerald Fredrick Toben, 64, was arrested at Heathrow, travelling from America to Dubai, and appeared before City Westminster Magistrates' Court on Oct 2nd. He is an Australian citizen, who was arrested under the European Arrest Warrant (EAW) system for a 'thought crime', illegal in germany, but not in the UK. The crime? He is a holocaust denier. In the light of overwhelming evidence, many would feel that denying the holocaust is both plain stupidity and is also highly offensive to the families of holocaust victims. But a crime?
[Photo from http://www.theaviationnation.com/ ]
I've no interest in defending Dr Toben's views, but wish to put that aside because of the greater issue - the changing nature of justice in Britain today, a change taking place, tiny piece by tiny piece. A change that if implemented all at once, would cause a public outcry, but, like boiling a frog slowly, we are hardly noticing the slow changes as they come about.
An Austrailian citizen lands at Heathrow and is arrested and incarcerated for something that is not a crime in Britain at the wish of a foreign government. Our extradition treaties used to recognise the difference between the way that we treat British citizens, or people in this country, under "Common Law" and the way that some other countries treat theirs, under "Civil Law". The treaties were a recognition that British citizens, or people on our soil can expect a higher standard of justice, fought for and maintained over centuries, through the likes of Magna Carta and Habeas Corpus.
EXTRADITION
From The Crown Prosecution Service web site
-------------
"Definition
Extradition is the formal procedure for returning persons located in one country to another country for the purpose of criminal prosecution, to be sentenced for offences for which they have been convicted or for the carrying out of a sentence which has already been imposed."Information (accused persons) The warrant must contain:
Particulars of identity;
Details of any other warrant issued in the requesting territory for that person;
Particulars of the facts;
Particulars of the relevant foreign law under which the conduct is alleged to constitute an offence;
Details of any sentence which may be imposed in the event of conviction.
Role of CPS
In Part 1 export extradition cases where the subject of the extradition proceedings has been arrested in England or Wales, CPS provides representation for the requesting judicial authority in proceedings before the English courts.
...
All export extradition cases are dealt with at first instance in City of Westminster Magistrates' Court by Special Crime Division of CPS HQ.
---------------
As I've said before, my non-lawyer understanding is this. So someone being extradited has his or her (I'll just use the generic 'he', from here on) case heard before an English Court, where the evidence is presented and he has the opportunity to defend himself. A decision is then made, based on the evidence.
The European Arrest Warrant changed all that. Now someone can be arrested on pure suspicion. I have read of cases of British people arrested because of a vendetta or mistaken identity where the aggrieved person knew the local police well enough to get a warrant issued, just on suspicion, and in the case of one British subject, spent 2 years in a Spanish prison before he was released, because it was mistaken identity. He had no right of redress, no apology - nothing.
EUROPEAN ARREST WARRANT
As The Telegraph puts it
The major contrast between normal extradition and European Arrest Warrant procedures is that court hearings under the new process do not consider the allegations against the defendant, or examine evidence.
The warrant was used to extradite bomber Hussain Osman back to London after he fled to Italy following the failed attacks of July 21, 2005. It has also been hailed as an important tool in ending Spain's "Costa del Crime" phenomenon.
However, Eurosceptics, fair trial organisations and some human rights groups have said the scheme hands too much power to unaccountable authorities in a foreign state, whose evidence is not adequately tested.
A warrant can be requested for suspects accused of 32 categories of crime, although problems arise with offences which are dealt with in different ways by different EU states, particularly "racism and xenophobia" offences.
The warrant can be applied retrospectively, in regard to offences committed before 2004, by most states, including Britain.
42 DAYS OR 18 MONTHS?
One of the most contentious issues is that, in many EU States, people can be held without charge for 18 months or more. Jack Straw made an impassioned plea, earlier in the year, in the UK Parliament, to increase British Courts' powers to hold people without charge for up to 42 days. The EAW makes an absolute mockery of Jack Straw's impassioned stance. Either he was completely ignorant of the 18 months or more, inherent in the EAW system, or ..........
(Dr Toben will reappear in court on 10th October, to discuss bail. An extradition hearing will be held on 17th October.)