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On the consequences of the European Arrest Warrant

Update: In the original version of this article, I wrote that the European Arrest Warrant allows for extradition to take place if the offence is punishable by 1 year or more in prison in the country requesting extradition. This is only true if the offence exists in both jurisdictions, i.e. if dual criminality applies. As section 64(2) of the Extradition Act 2003 makes clear, extradition where there is no dual criminality requires the offence to be punishable by 3 years or more in prison. I have altered the article to correct this. Apologies for the mistake.

On the 1st October, Dr Frederick Toben, an Australian citizen, landed at Heathrow Airport whilst on a journey from America to Dubai.

He did not complete that journey.

Instead, he was arrested via a European Arrest Warrant, on a charge of ‘holocaust denial’, at the behest of the German government.

I strongly disagree with this man’s views, but he has as much right to express his views as I do. I am opposed to making holocaust denial an offence for the simple reason that it is contrary to freedom of expression. I also think it is wrong to prevent people, by law, from expressing scepticism or doubt about the generally accepted accounts of an historical events, since there is no guarantee that those accounts have managed to capture all the evidence surrounding those events or evaluate it fully and objectively. The best guarantee one can have is to allow people to make their arguments and to test each other’s arguments. Outlawing the expression of points of view that are in opposition to an officially accepted view means you hinder further advances in knowledge about the subject matter, not because the outlawed points of view are correct but because the debates and challenges that arise from allowing them to be expressed may lead to new insights or new evidence being discovered. Making an official point of view sacrosant turns history into dogma.

But this case is not merely about freedom of speech, or freedom of historical enquiry. It is also about the rule of law, and there are no British laws against holocaust denial.

So why has Toben been arrested? Because:

  • Toben runs a website that denies the holocaust happened.
  • Britain signed up to the European Arrest Warrant (EAW), which allows for fast-track extradition between EU states without any evidence being presented to the courts of the country performing the extradition and where there is no requirement that the conduct be an offence in both countries. The conduct needs only to be an offence in the country requesting extradition, so long as the offence falls into one of a broadly defined set of categories, and is punishable by 3 years or more in prison; Toben is apparently facing upto 5 years in a German prison.
  • With the internet, many countries, Britain included, are applying the principle that once someone downloads material in a particular jurisdiction (e.g. by reading a web page with their browser), that material has been published in that jurisdiction. Germany will therefore be claiming that Toben’s website has been published in Germany, even though he runs it from Australia, where there are also no laws making holocaust denial an offence, and thus that Toben committed an offence falling under the “Racism and Xenophobia” category that enabled them to request extradition under the EAW in the first place.

If Toben is extradited, then it will confirm that anyone (who is accused of) publishing, on the internet, any articles questioning the holocaust could be extradited to Germany from any other EU country without their local courts even getting a chance to see any evidence against them, regardless of whether their internet publications were legal in their own country or the country where the website is run from.

More generally, it means that one’s internet publications are effectively subject to the union of all the laws applying in the EU, where the offence is punishable by 3 or more years in prison, and which fall under the “Racism and Xenophobia” banner or any of the other 31 categories (e.g. “computer-related crime”), and you could be extradited to any other EU state on the accusation that your publication violated those laws. Anyone living in or travelling through any EU country can potentially be targetted with this legislation.

EU-wide powers for “trial in absentia” proposed

Posted by James Hammerton @ 9:41 pm on 3 September, 2008.
Categories democracy and the rule of law, British politics, European Union politics.
Edit This Permalink to this article

[Hat tip: abelard]

The Times reports:

British citizens could be convicted in their absence by foreign courts for traffic, credit card or other criminal offences under plans approved in principle by the European Parliament.

The proposals would allow citizens to be extradited automatically under fast-track procedures at the request of another European Union country on the basis of a decision by the foreign court.

The overwhelming adoption by the Parliament of the proposals, which now go to the Council of Ministers, was condemned yesterday as “throwing habeas corpus out of the window”.

Philip Bradbourn, the Conservative justice and home affairs spokesman in the European Parliament, said: “This initiative would enable courts to pass judgments in absentia. It goes against one of the most fundamental corner-stones of British justice – that the accused has a right to defend himself at trial. If other EU countries want to go ahead with this proposal that’s their choice, but the British Government should have no part [of it].”

The proposal has been put forward by seven EU countries, including Britain, to strengthen procedural safeguards in the European Union and mutual recognition of processes in criminal proceedings. Countries can opt out from the proposals even if they are adopted by the Council of Ministers.

Thus you could be tried and found guilty in another EU country and the first you’d know about it is when the fast-track extradition warrant is served against you. Note that EU states can extradite people under the European Arrest Warrant without any evidence being presented to the courts of the country that the person is being extradited from.

Freedom of speech roundup

There have been a number of freedom of speech related stories recently that I’ve only just got round to covering, ranging from the UN Human Rights Council’s recent decision to gather information about “abuses” of freedom of speech to a prominent British blog being sued by an individual connected to Hamas. All over the world it seems to me that freedom of speech is being attacked. The details of these recent stories can be found below:

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British government considers database of phone calls, web site visits and emails.

Summary: The proposed central database logging details of who people phone, who they email and what websites they visit, at first glance, merely duplicates the storage of such information by internet and phone companies. However, by creating their own central database, the government will make it easier to look up any British resident’s calls and emails, easier to extend the retention of this data and easier to share the data across government departments and public bodies in the future. It will also create a valuable target for information thieves. All this assumes, of course, that they can manage to get such a large-scale IT project off the ground in the first place…

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Blogging licences!

[Hat tip: Tim Worstall at the Business]

Apparently, a law has been put forward in Italy that would require anyone running a blog or a website to register with the Communications Authority, obtain certificates and pay a tax.

Should this be succesfully introduced there, I wonder how long it will be before someone proposes it for the entire EU?

Mind you, at the “Hat Tip” link above, Tim Worstall suggests the introduction of such a law might just back fire…

If this actually happens I can tell you what will come next though. It’s not all that tough to write a script that will generate a blog for you, nor would it be to get another to fill in the relevant forms. The office doing the registration will be inundated with applications, millions upon millions of them. If this goes through then I think the Italian State is going to find out about Slashdot and what a few tens of thousands of enraged geeks can do to you.

Privacy and surveillance roundup

Continuing in catch-up mode, here’s a round-up of recent privacy and surveillance related stories:

  • Back in July, it was reported that the LTI 20.20, the police’s favourite speed gun, can lie. Amongst it’s many feats, were a recording a bicycle 66mph, a parked car doing 22 mph and a brick wall doing 40mph…
  • [Hat Tip: IanPP]Highlighting just how leaky public bodies can be when it comes to personal data, ZDNet reported in September that an inquiry was being held to find out how a hard drive containing NHS patient data ended up being sold on eBay.
  • The UK’s DNA database currently holds the samples of those who have been investigated of crime, whether they’re charged or cleared or not. This has led to some sections of society being disproportionately represented in the DNA database. Lord Justice Sedley thinks this is unfair. His solution? Every UK resident, plus all visitors to the UK, should be required to have their DNA put on the database. Surely the unfairness would be reduced if only those actually convicted of crime had their DNA permanently stored?
  • The Daily Mail reports that, as of 1st October, all phone companies are required to store information about which people you phone, how long for, from which numbers and in the case of mobile phones, from which location for a minimum of a year. Access to this information must be provided to some 795 public bodies ranging from your local council, the tax authorities and government deparments through to the Food Standards Agency, the Immigration Service and the Charities Commission. This is all down to Statutory Instrument 2199, implementing the European Union’s Data Retention directive. Trevor Mendham comments on this proposal at this blog. Note that in 2009 the plan is for information about your internet communications to be subject to a similar regime, i.e. storing who you email, who emails you, which websites you visit, who visits your website, etc.
  • Part III of the Regulation of Investigatory Powers Act 2000 (RIP Act) was finally brought into force, starting on the 1st October, via this Statutory Instrument. The significance of this is that it means that the police can demand that you provide the encryption key to encrypted data found in your possession, under section 51 of the RIP Act. Note that if you ever knew/had the key to the encrypted data you are presumed to still know/have the key subsequently. Bruce Schneier comments on this policy here. The Strange Stuff blog has created an article which, if you read it on your computer, could lead you to falling foul of this law… How are you going to prove you don’t have the key?
  • The Telegraph reports that scientists have developed a method of tracking people on CCTV that can take account changes such as removing jackets or changing appearance:

    The new system plugs the surveillance gap by enabling an operator to choose a suspect and follow him through dense crowds, and any subsequent changes in appearance.

    It works by attaching about 30 “tags” on small clusters of pixels on the footage, fixing them on different parts of the subject. It then “locks on” to these tags, and as the subject is filmed, the computer is able to follow his or her exact progress on the film, as the target moves about.

    The system has been developed by scientists at the defence company BAE Systems, the University of Reading and Sagem, a French telecoms company.

    Andrew Cooke, the project manager, said: “This kind of technology would allow us to track someone like Bourne.”

    Present CCTV surveillance “hits a brick wall” when a suspect mingles in a crowd or even takes off his jacket. The new system will even be able to pass information from one CCTV camera to another and can be programmed to pick out potential criminals by detecting suspicious body language.

  • The Home Office is currently running a trial of a scheme for fingerprinting airline passengers as they enter the UK at Gatwick Airport, ostensibly as a means of preventing illegal immigration. Such a scheme entails recording every air passenger’s visits to the UK, and is thus yet another form of mass surveillance.

Bowland Dairy Farms, the EU and the rule of law

I’ve been meaning to cover this story for ages, because it suggests that the rule of law in the EU can be brushed aside by the European Commission, who have ignored a ruling of the European Court of Justice.

Tim Worstall reported on the case of Bowland Dairy Farms here and here, citing Christopher Booker’s story in the Telegraph.

In summary, Bowland Dairy Farms, an £8million per year business selling curd cheese to five EU countries, was visited on June 12th 2006 by officials from the European Commission’s Food and Veterinary Office (FVO). After a 90 minute look through the farm’s paperwork, they claimed that the milk in the curd cheese broke EU regulations on anti-biotic residues and issued a “rapid alert notice” that the farm’s products were unsafe.

The UK’s Food Standards Authority (FSA) subsequently did an inspection and disagreed, and allowed production to resume. However the FVO insisted the milk did not comply with EU rules, to which the FSA responded that the FVO inspectors were confused over which type of milk was being used. The FSA made a statement to all EU members that there was no evidence of contaminated milk being used and that the cheese was perfectly safe to use. The Commission appended its own negative comments to this statement and maintained the ban.

Bowland Dairy Farms took the FVO to the European Court of Justice (ECJ), the highest court in the EU and supposedly the ultimate arbiter of EU law. On Sept 8th, after considering the case the ECJ found completely in Bowland Dairy Farms’ favour, and ordered the Commission to withdraw its statement about the farm and the ban. The Commission refused twice, and the ECJ ordered the Commission to stand aside on September 12th. The Commission tried to append a statement to the court order saying they’d merely lost on a technicality, and the judge order this to be removed.

On September 27th, the FVO reinspected the farm and found little wrong. However, in October the Commission asked its standing committee to approve a ban preventing Bowland Dairy Farms from any further trading, without the court orders or any evidence being presented to the committee. The committee duly voted for the ban. An EU-wide directive was issued preventing anyone from placing curd cheese manufactured by Bowland on the market and apparently has the force of law. Bowland Dairy Farms are no more.

The scary thing about this is that the actions of the European Commission in doing this were clearly illegal — they had been ordered by what is supposed to be the highest court in the EU to lift the ban and they refused and instead pursued it with more vigour. Surely this means that the rule of law has been brushed aside in this case? And if so, what’s to stop the rule of law being brushed aside in other cases?

Farmer’s herd of cattle destroyed because of unspecified “irregularities” in paperwork

Posted by James Hammerton @ 9:16 pm on 1 April, 2007.
Categories democracy and the rule of law, British politics, European Union politics.
Edit This Permalink to this article

Christopher Booker, writing in the Telegraph, tells us the story of David Dobbin, a farmer who had his herd of prize-winning cattle, worth at least £500,000, destroyed by DEFRA officials, enforcing EU regulations, on the basis of unspecified irregularities in his paperwork:
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EU and british government to fingerprint kids

I realise I’ve been a bit slow on reporting on this but here goes anyway. Early in March, The Register reported that the government apparently plans to take the fingerprints of children as young as 11 for biometric passports:

Home Office minister Liam Byrne told ITV1 television’s The Sunday Edition that the Identity and Passport Service wanted to fingerprint all children over the age of 11 and keep their particulars on a database.

The reason, he said, is because it is currently possible get a 10 year passport without biometrics while a child and still be carrying it validly at age 17, the age at which a biometric passport would be issued to someone who applied afresh for their travel permit.

According to this article, the European Union has already agreed to fingerprint children as young as 12:

A Home Office spokesman said it is bound by the rules of the European Schengen agreement, which Britain isn’t signed up to, but has vowed to mirror, to introduce biometric fingerprints to British passports by 2009.

The spokesman said the Europeans hadn’t decided on a minimum age for demanding that someone proffer their biometrics at border control.

However, the European Council pretty much already agreed last summer that children as young as 12 would be stored on Europe’s fingerprint database.

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