European Arrest Warrants

An Australian who has denied the Holocaust occurred was sentenced to three months in prison today for defying an order to stop publishing anti-Semitic material on his website.

Fredrick Toben remained free after the sentencing, however, because the judge gave him two weeks to lodge an appeal.

Justice Bruce Lander of the Federal Court found Toben guilty of 24 counts of contempt of a 2002 court ruling that barred him from publishing anti-Semitic material on the website of his organisation, the Adelaide Institute.

The material found to be in breach of the order included suggestions the Holocaust did not happen, that questioned whether there were gas chambers at the Auschwitz death camp, and that challenged the intelligence of Jews who questioned Holocaust deniers' beliefs.

Toben said the ruling was a defeat for free speech: I am quite prepared to sacrifice my physical comforts for the sake of free expression.

Andrew Symeou was deported to Greece, where he was not allowed bail because he is not domiciled there. He could be held in prison for up to 18 months before trial, although this week his Greek lawyer hopes to win a further plea for bail.

In 2001, when EU leaders gathered in Laeken, Belgium, to plan their next great leap forward to European integration – the ill-fated EU constitution – they also agreed on what they saw as another bold symbol of their wish to see Europe politically and legally united: the European Arrest Warrant. Fired by the recent 9/11 outrage, they agreed that the courts of any country could call on those of another to order the automatic extradition of anyone suspected of offences under 32 headings, with such crimes as terrorism, drug-running and "xenophobia" high on their list.

Even then, fears were expressed that such a summary shortcutting of normal legal procedures might lead to serious injustices. Not all of the EU's judicial systems (to put it mildly) rest on the same ideas of justice. But even those most worried about the dangers of this system could scarcely have imagined a case like that involving the extradition to Greece of a 20-year old British student, Andrew Symeou.

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The UK has already suffered EU wide extradition and arrest powers whereby British people have been arrested in the UK and extradited to Europe and particularly Poland for totally trivial crimes. Also people have been arrested in Britain for things that are not even against the law here, like holocaust denial.

But now it seems that such cross-border policing powers will be extended to crime investigations.

The proposed power would allow officers from an EU country to demand information on anyone they suspect of an offence, no matter how minor or whether it is even criminal in the UK.

The directive would see UK police almost powerless to prevent the handing over of personal details such as DNA, bank account or even telephone records. They could even be ordered to carry out investigations and live surveillance for their EU counterparts, despite already stretched resources.

The European Investigation Order (EIO), which is already backed by countries such as Spain, Bulgaria, Estonia and Slovenia, would also allow foreign police to investigate alleged crimes themselves directly on UK soil.

Critics warned it could lead to serious breaches of fundamental rights and called on the UK Government not to sign up to the directive. Fair Trials International (FTI) said it could result in disproportionate requests, such as demands for the DNA of plane loads of British holidaymakers following a murder in their resort.

It could also see British officers chasing crimes that are not even covered by UK law such as criminal defamation.

Police would not be able to argue that the request or alleged offence being investigated is disproportionate.

Dominic Raab, Tory MP for Esher and Walton, who raised the issue in the House of Commons said: Britain should not opt into this half-baked measure. It would allow European police to order British officers to embark on wild-goose chases. It would force our police to hand over personal information on British citizens, even if they are not suspects and the conduct under investigation is not a crime in this country. And it gives foreign police law enforcement authority on British soil.

The FTI report added the directive is far from satisfactory in terms of guaranteeing fundamental rights and ensuring proportionality.

The Home Office has until July 28 to decide whether to opt in to the order or not.

Britain slavishly implements foreign extradition requests while other countries are protecting their citizens with opt-outs.

Anger at Britain's gold-plating of the controversial European Arrest Warrant is growing after it emerged that other EU countries have secured significant safeguards for their citizens that are not available to British nationals.

More than 1,000 people in Britain last year were seized by police on the orders of European prosecutors, a 51% rise in 12 months.

Many are accused of trivial crimes overseas such as possessing cannabis or leaving petrol stations without paying. No evidence need be presented in British courts of the alleged offence and judges have few powers to resist the person's extradition.

Those affected can spend long periods in jail here and abroad for crimes which might not even be prosecuted in this country. They can also be seized for offences which are not even crimes in Britain.

The Sunday Telegraph has established that many other European countries have given themselves opt-outs or conditions to protect their citizens.

Holland will not extradite Dutch nationals under the EAW unless the accusing state agrees that they can serve any prison sentence in a Dutch jail. The Belgians have opt-outs so that the warrant does not cover abortion. France appears reluctant to extradite its own nationals under the EAW and has stated in the past that they will not be extradited.

Europe's largest country, Germany, has imposed a proportionality rule stating that only those accused of serious crimes can be seized under a warrant. The definition of serious is not given, but it would exclude large numbers of the trivial charges dealt with by the British extradition courts.

Karen Todner, one of Britain's leading extradition lawyers, said: It is typical of us not to have given ourselves proper protection. British judges apply the EAW treaty to the letter and these massive injustices come about because the Government hasn't thought this through. There are a lot of quite simple things we could do now to mitigate the harm done to British citizens, which could be done quite quickly through a simple administrative decision.

Jago Russell, the chief executive of Fair Trials International, said: The human impact of an extradition is crazy. In its forthcoming review of extradition law, Britain needs to learn lessons from the likes of Germany, which have put much-needed safeguards in place to protect their citizens.

The Home Office is to review UK extradition agreements with other countries, including the controversial and some say unbalanced agreement with the United States.

According to reports, the review will include the Extradition Act 2003 which implemented into law the UK-United States extradition treaty. It will also consider the European Arrest Warrant, which was used for 50% more arrests last year.

The review fulfils the pledge made in the coalition's program for government to review the operation of the Extradition Act – and the US/UK extradition treaty – to make sure it is even-handed.

The former Home Secretary, David Blunkett, has told the BBC that the agreement with the US was forged very much in the shadow of the September 11 2001 attacks. He also regrets some of its features:

The problem, campaigners say, is that whereas the U.S. extradition agreement may have been designed with suspected terrorists in mind, in fact it has been used to extradite many who have nothing to do with terrorism, such as Gary McKinnon. It is also accused of being unbalanced in favour of the US.

A review of the UK's extradition laws by a former Court of Appeal judge has found that existing arrangements between the UK and USA are balanced but the Home Secretary's discretion to intervene in human rights cases should be removed.

• The European Arrest Warrant (in the news most recently in relation to the attempted extradition of Wikileaks founder Julian Assange to Sweden) has improved the scheme of surrender between Member States of the European Union and that broadly speaking it operates satisfactorily. However, some member states are issuing too many warrants, a problem which is being addressed by the European Union and Commission.
   
• The United States/United Kingdom Treaty, which campaigners for Gary McKinnon amongst others have argued is unbalanced against the UK, does not operate in an unbalanced manner and there is no significant difference between the probable cause [US] test and the reasonable suspicion [UK] test.

Sir Scott’s 486-page review is certainly thorough, but those who were hoping for radical recommendations will be disappointed.

The human rights organisation Liberty have said they are completely baffled by it and campaigners for Gary McKinnon have called the recommendations pathetic.

The Home Secretary, however, has said that she is very grateful; it may be that the Home Office is relieved that significant and complicated extradition agreements with other states will not have to be renegotiated.

Perhaps someone should have asked whether the extradition rules are fair to the people involved rather than whether they are 'balanced' between the participating governments.

Offsite: Further Examples of Injustice

11th November 2011. See article from telegraph.co.uk

A British woman was seized, strip-searched and jailed under the controversial European Arrest Warrant for an alleged crime committed by her then boyfriend 12 years before.

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