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    Breaking the law without breaking the law


    by Rumbold on 10th November, 2009 at 1:49 pm    

    Holocaust denial is idiotic. It is contrary to a massive weight of evidence, and you will find no respectable historians holding such a position. It is usually a view held by those who think Jews are subhuman, or evil, or involved in some sort of conspiracy (and usually all three). In short, it is nasty and ridiculous. Yet it is not a crime in this country, and for good reason, because it is a view; an opinion. People cannot be tried in this country for denying the Holocaust, since Holocaust denial is not a crime. However, this is likely to change soon, when the Transfer of Criminal Proceedings is implemented.

    This will allow a person to be tried in an EU country if they have broken the law in another EU country, even if they have not visited that country themselves. So a Briton who has never left this island could be tried (and convicted) for Holocaust denial in a British court, even though the offence was committed in Britain where it is not a crime:

    As the European scrutiny committee of the House of Commons noted in its report on the proposed reform: “[This] is both novel and far-reaching: it gives national courts competence to try a criminal offence that is not prescribed by UK law or, put another way, that the Government has not proposed nor Parliament agreed should be a crime. Instead, jurisdiction comes from the EU Member State that is transferring the proceedings.” For instance, someone accused of holocaust denial, a crime in Germany and Austria, could be tried for it in an English court even though it is not an offence here.

    It means more work for lawyers, who will now have to ensure that companies and individuals comply with twenty seven different law codes, and it means more work for bureaucrats. People often ask me why I am a eurosceptic, and it is laws like this that make me so. A completely unnecessary, costly and vastly illiberal piece of legislation for the sole purpose of ‘harmonisation’. What good does it serve?


         
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    Filed in: Civil liberties, History






    22 Comments below   |  

    Reactions: Twitter, blogs
    1. Owen Blacker

      RT @pickledpolitics: Blog post:: Breaking the law without breaking the law http://bit.ly/449Bty


    2. pickles

      Blog post:: Breaking the law without breaking the law http://bit.ly/449Bty




    1. john b — on 10th November, 2009 at 4:58 am  

      Wrong villain: the issue here is the Telegraph lying, not the EU.

      Article 11, “Double Criminality” says that:

      “A request for transfer of proceedings can be complied with only if the act underlying the request for transfer constitutes an offence under the law of the Member State of the receiving authority”.

      In other words, nobody will be tried in the UK for anything which isn't an offence in the UK, and anyone who says they will is either lying or has been misled by liars.

    2. john b — on 10th November, 2009 at 4:58 am  

      (see also: almost every story on the EU ever)

    3. Chris H — on 10th November, 2009 at 5:19 am  

      john_b, yet the European Scrutiny Committee of the House of Commons notes in its July report:
      ———————-
      TRANSFER OF COMPETENCE TO PROSECUTE

      8.35 Article 5 is both novel and far-reaching: it gives national courts competence to try a criminal offence that is not prescribed by UK law — or, put another way, that the Government has not proposed nor Parliament agreed should be a crime.
      ———————-

      Don't know if they have had an answer as of yet.

    4. Leon — on 10th November, 2009 at 5:36 am  

      Wow. That's some step towards a federal European government, I'm surprised this hasn't caused real uproar amongst the right…!

    5. Ravi Naik — on 10th November, 2009 at 6:22 am  

      This makes no sense at all (for a non-eurosceptic). And why should it not be the other way around? If it is not a crime in Britain, why should a German be prosecuted for holocaust denial in Germany?

      According to Sweden, “Transfer of Proceedings in Criminal Matters” is defined as:

      The transfer of proceedings entails a request from one state to another, asking the requested state to initiate legal proceedings for an act that is a punishable offence in both the requesting and the requested state.

    6. john b — on 10th November, 2009 at 6:53 am  

      @Ravi - yes, that's how it's defined in the framework we're discussing here too.

      Here's the link to the non-cherrypicked Parliament discussion. It also states:

      8.13 The requirement of double criminality is set out in Article 11:

      “A request for transfer of proceedings can be complied with only if the act underlying the request for transfer constitutes an offence under the law of the Member State of the receiving authority”.

      8.14 The Explanatory Report states that the principle of double criminality in abstracto, as opposed to in concretu, has been chose in conformity with other EU instruments. “This means that the act underlying the request for transfer has to fit the definitions of the requirements of an offence in both Member States.”

      8:14 shows that the conclusion in 8.35 can't be referring to *acts* that Parliament hasn't deemed to be crimes. The only other way it can make sense is if referring to jurisdiction - ie the UK Parliament hasn't decreed that it's a crime for me to mug a Pole in Warsaw, but under these regulations I could be tried in an English court for doing so.

      …which is the whole bloody point of the document, isn't it?

    7. Ravi Naik — on 10th November, 2009 at 7:20 am  

      Totally agree, John B. In my last comment, I thought I should bring the definition of another EU state in order to show that there is a consensus in what “Transfer of Proceedings in Criminal Matters” is. I mean, we do not want Nick Griffin to be afraid to say what he really thinks about the Holocaust, now do we?

    8. john b — on 10th November, 2009 at 7:37 am  

      Heh. I suspect if NG said what he *really* thought about the Holocaust, that'd count as incitement to racial hatred under English law anyway…

      (I'm reminded of the old bad-taste joke about Nazi-sympathising Holocaust deniers - it's like saying you're a Beatles fan but that they never recorded Sergeant Pepper's…)

    9. Don — on 10th November, 2009 at 9:53 am  

      This does seem implausible and unworkable. There is no link to the document referred to by The Telegraph and when I google I reach the same conclusion as john b and Ravi.
      Are you sure about this one?

    10. Dan Dare — on 10th November, 2009 at 9:59 am  

      There are no laws against Holocaust denial in Britain because they are not needed. The Public Order Act of 1986 fulfils that function, as shown by the convictions of Nick Griffin, Jane Birdwood, Stephen Whittle and Simon Sheppard.

      Courts have consistently interpreted minimizing, trivialising or ridiculing the Holocaust as insulting to Jews and therefore grounds for conviction under the offence of incitement to racial hatred

    11. john b — on 10th November, 2009 at 10:23 am  

      @Dan, I'm not sure you're right there.

      Birdwood and Griffin were convicted on the basis that their literature accused Jews of a conspiracy to destroy the UK (and hence passed the 'actually inciting racial hatred' test.

      I'm not entirely clear on *exactly* what material Whittle and Sheppard were convicted for in the end (fairly sure that 'reprinting a Robert Crumb cartoon' doesn't count, for example), but the prosecution explicitly stated throughout their various trials that denying the Holocaust and saying you hate Jews are both legal in the UK - and that Whittle and Sheppard went way beyond that into incitement to RH.

    12. shatterface — on 10th November, 2009 at 11:34 am  

      I'd have the opposite. If something is legal in one country it should be legal to do it in others.

      Why the fuck should I have to travel all the way to Amsterdam?

      For the culture, I mean.

    13. falcao — on 10th November, 2009 at 11:59 am  

      So insulting jews with holocaust denial is a criminal offence ok i can understand that. But insulting muslims on a daily basis in the red tops and propoganda from other right wing organisations you will find no criminal offence in sight clear double standards!

    14. Don — on 10th November, 2009 at 12:54 pm  

      If you can demonstrate intent to cause racial hatred, it's an offence. It's not a jewish-specific law.

    15. Rumbold — on 10th November, 2009 at 1:05 pm  

      John B (and Ravi):

      If that is the case, then the Telegraph have got it wrong. That seems to be the case, which is a shame, because Phillip Johnson is normally pretty good.

    16. Dan Dare — on 10th November, 2009 at 1:32 pm  

      @ John b

      Both Griffin and Birdwood were convicted, in part, for their references to the 'Holohoax', the latter in her pamphlet 'The Longest Hatred'. Both were judged to have used 'abusive, threatening or insulting words like to stir up racial hatred', which is a criminal offence prohibited by the POA86.

      It's also important to note that other European countries which have laws against Holocaust denial (eg Art. 130 of the German Penal Code which deals with 'Incitement') do not limit the offence to the act of denying the historical truth of Holocaust. It is sufficient to trivialise or minimise it as Griffin and Birdwood were said to have done.

      As for Whittle and Sheppard they were convicted of altogether 14 offences under the POA, several of which involved trivialising the H (the Auschwitz holiday camp piece being one). These were said to be insulting to Jews and formed part of their prosecution and conviction.

    17. john b — on 10th November, 2009 at 2:59 pm  

      @Dan your second paragraph is of no relevance whatsoever, because England doesn't have any laws against Holocaust denial.

      As I said, the prosecution, defence and judge at Whittle and Sheppard's trial all made very clear to the jury that Holocaust denial is not an example of incitement to racial hatred. Hence, Holocaust denial is not illegal in the UK. Hence, your suggestion that courts view “minimising” or “trivialising” the Holocaust as incitement to racial hatred is wrong.

    18. Dan Dare — on 10th November, 2009 at 4:17 pm  

      “@Dan your second paragraph is of no relevance whatsoever, because England doesn't have any laws against Holocaust denial.”
      On the contrary, it is highly relevant to point I am making that the laws in other countries where ‘Holocaust denial’ is believed to be an offence are far broader than simply denying the standard account of the Holocaust. Art. 130 of the German law, for example, provides for a sentence of up to five years for denying *or* belittling the H, or for anyone who ‘assaults the human dignity of others by insulting, maliciously maligning, or defaming segments of the population.’
      As I said, the prosecution, defence and judge at Whittle and Sheppard's trial all made very clear to the jury that Holocaust denial is not an example of incitement to racial hatred. Hence, Holocaust denial is not illegal in the UK. Hence, your suggestion that courts view “minimising” or “trivialising” the Holocaust as incitement to racial hatred is wrong.
      I don’t have access to the trial proceedings so will have to take your word on that, perhaps you could provide a link?
      But, again, although the general point I am really making is that European laws agaisnt Holocaust “denial” encompass a much wider range of prohibited acts than simply disputing the historical account, it is incorrect to claim that there have been no prosecutions to date in Britain for straightforward H-denial. Birdwood’s 1991 conviction and Griffin’s in 1998 both clearly fall in that category. I would also add the 1995 conviction of Kevin Quinn who was given a suspended sentence under the POA for mere possession ‘with a view to distribution’ of ‘The Longest Hatred’.
      With respect to Sheppard and Whittle, none of the material for which they were convicted made any attempt at serious criticism of the standard historical account, it was all intended to be ‘satirical’. Nevertheless, they were convicted on one count of possession and one count of publishing the Tales of the Holohoax comic book, and three counts of re-publishing, on the internet, the Ohrdruff, a Satirical View of the Alleged Holo©o$t® website. The specific pages cited were: Auschwitz Holiday Resort, Evil Zionist Kike Vermin and Kike Windchimes. These were held as being ‘abusive, threatening or insulting’ materials ‘likely to stir up racial hatred’ under sections 19 and 23 of the Act, which prohibit the possession, distribution and possession of ‘racially inflammatory material’.

      So here we have instances of the use of the POA86 to prosecute and convict both ‘factual’ denial (Birdwood, Griffin, Quinn) and trivialisation (Sheppard, Whittle). With such multipurpose legislation at its disposal, the government has no need of laws against Holocaust denial per se. Anyone who disputes it can test it for themselves by walking around in public holding a placard with the text: “Nick Griffin was right: ‘The Holohoax is a mixture of Allied wartime propaganda, extremely profitable lie, and latter-day witch-hysteria’” and see how long it takes to get arrested.

    19. john b — on 11th November, 2009 at 12:49 am  

      Evil Zionist Kike Vermin

      …is the point. The Holocaust itself isn't. If they'd instead been attempting to seriously criticise the historical account (or even being 'satirical' in a way that didn't involve branding the Jews as evil vermin), they wouldn't have been convicted.

    20. douglas clark — on 11th November, 2009 at 2:52 am  

      This does, however, bring up a valid question about equivalency at Law does it not? As we are talking about laws that were passed by different jurisdictions, some lawyers will claim that there is equality of intent, and others that there is not. Which, I take it, is the point that Dan Dare is making.

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