While most people think of the work of the European Union in terms of economics and employment law, for a number of years the EU has been equally keen to seek closer cooperation between the member states in the area of criminal justice. In November 2008, the Justice and Home Affairs Council adopted the Council Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law (2008/913/JHA) (OJ L 328, 06/12/2008, p 55) (“the Framework Decision”) which must be incorporated into domestic law by 28 November 2010. Its intention is binding on member states, but the form and content is left to domestic legislatures. It raises some interesting points about national sovereignty.
The purpose of the Framework Decision is explained in recital 5: “It is necessary to define a common criminal law approach in the European Union to this phenomenon in order to ensure that the same behaviour constitutes an offence in all Member States …”
The 2001 Explanatory Memorandum to the Proposal (OJ C 332E, 27.11.2001, p 305) premised EU activity in this area. The intention was to prevent citizens in one member state taking advantage of a platform in another member state through which they could perpetuate racist violence with impunity. Neo-Nazi groups are a source of particular concern. The Fundamental Rights Agency Annual Report 2008 confirms that recorded racist crime is rising and it is accepted that this needs to be addressed.
Effect in the UK
Because the United Kindgom negotiated carefully the obligations within the Framework Decision and because states can choose their form of implementation, new legislation will not be required in the UK. Sections 17 to 29 of the Public Order Act 1986 (POA 1986) already encompass the offences in art 1(1) (see box, below); ss 22, 23 and 26 reflect art 7, and s 29J extends the freedom to comment on religious matters irrespective of abuse.
It will be easy to argue that offence (c) is simply a manifestation of offence (a); In R v Aleem  2 Cr App (S) 70 the Court of Appeal considered whether sentences upon convictions for soliciting murder and stirring up racial hatred were excessive, following a protest against the publication of cartoons depicting the prophet Mohammed in a Danish newspaper. One of the placards displayed read “Be Prepared for the Real Holocaust”. The factual scenario of that case could fall within the remit of offence (c) of art 1(1) but convictions were secured under existing law. Consequently, the UK will not be required to create any new “hate” offences despite the clear intentions of the Framework Decision to do so.
Approach in other member states
However, this is not the end of the matter. The adopted instrument permits wide ranging discretion in the implementing approach of each member state. In addition to art 1(2) and (4) set out below, recital 10 provides the option to extend offence (c) to other means of identification such as social status or political conviction.
Furthermore, in addition to domestic jurisprudence delineating the application of art 7, art 9 gives member states the option to prosecute nationals committing racist and xenophobic crimes, as defined by their national legislation, outside of their member state, reflecting the concerns raised in the Explanatory Memorandum.
The European Arrest Warrant (EAW) was the first instrument to be fully utilised by all member states (see Council Framework Decision (2002/584/JHA) of 13 June 2002 on the European arrest warrant and the surrender procedures between member states, OJ L 190, 18.7.2002, p 1, which was transposed into UK law through the Extradition Act 2003). It replaces an executive decision with a judicial hearing but removes dual criminality (the principle in extradition law that the activity must constitute an offence in the requested country) for 32 wide ranging offences. These offences attempt to include the most serious and prevalent criminal behaviour. The absence of common definitions, however, can criminalise otherwise legitimate behaviour in the state whose cooperation is sought. A request identifying one of these offences obliges the UK to arrest and surrender, unless an extraneous bar can be made out, which usually requires evidence that the defendant’s rights under the European Convention on Human Rights would be infringed.
Chris Huhne MP, when debating the Policing and Crime Bill in January, said (HC Debates Col 543, 19 January 2009): “There is … a missed opportunity to amend the application of the European Union arrest warrant, to make it clear that we in this country will not entertain offences that involve freedom of speech, such as the recent case of Dr Töben.”
The case of Dr Töben, a German Holocaust-denier who has taken Australian nationality, illustrates the position. Dr Töben, having published allegedly anti-Semitic material on the internet, was travelling through the UK in October last year when Germany requested his surrender for committing a crime that had no equivalent in our legal system. The warrant was dismissed for want of particularity by the District Judge on 29 October 2008, and although the German prosecutor filed an appeal, this was withdrawn. A defence could well have been raised based on jurisdiction given that the website was hosted in Australia, which may not be available when the Framework Decision is transposed as a result of art 9.
When transposed, a person posting opinions on a UK website could not only find themselves being surrendered to a member state to which they hold dual nationality for inciting hatred towards Jews, but also capitalists, given the discretion afforded.
In limiting the remit of the EAW, the UK created ss 64 and 65 of the Extradition Act 2003. These permit a court to refuse an EAW when the conduct occurs outside the requesting member state and would not constitute an offence under UK law. However, the ECJ decision in Criminal proceedings against Pupino (Case C-105/03)  1 QB 83 at 109-110) provided important dictum for domestic legislatures purporting to transpose framework decisions. The ECJ held that impeding the purpose of an instrument will infringe the member state’s duty of cooperation; implementing law must be interpreted so far as possible in accordance with the framework decision.
This Framework Decision explicitly legislates to grapple with the problem of crime committed outside a person’s member state. Therefore, the UK could find that, where another member state has adopted art 9, attempts to prevent surrender in reliance upon ss 64 or 65 are defeated because the sections impede the intention to prevent cross border racist crime.
Conclusively, the Framework Decision makes no attempt on its face to limit existing legislation; it does not prevent requests for surrender under an EAW where intention to incite hatred is not a necessary ingredient in the requesting member state (see for example, the German Criminal Code 1998, s 130, which includes Holocaust denial). However, it will be interesting to see if defences to requests for surrender are brought arguing that the Framework Decision definition of the crime requires intention, thereby absolving the UK of the duty to recognise a crime which does not.
Richard Williamson, a British national and until recently a Catholic bishop in Argentina, may provide a test case. Bishop Williamson was re-admitted to the Catholic Church by the Pope on 26 January 2009. His views that there were no gas chambers in Nazi territories during the war, and that no more than 300,000 Jews “perished” were widely publicised as a result. In the UK we would consider his opinion bizarre, but not criminal. German prosecutors, however, opened an inquiry since these comments were made from Germany to a Swedish television broadcast. On 25 February Bishop Williamson arrived back in Britain following an order to leave Argentina.
A missed opportunity
The Framework Decision was an opportunity to define the crime of “racism and xenophobia”, but in this effort it has failed. In an attempt to reach agreement, the specific crimes set out in art 1(1) have been weakened. Whilst it is encouraging that member states will have to ensure they have a law against inciting racial hatred, some important ingredients are optional. There is a real prospect that tangible curtailments to freedom of speech will be made by legislatures in which other member states must be complicit when an EAW is issued. How other member states choose to interpret the Framework Decision must be carefully monitored. Until efforts are made at European Union level to either adopt a truly universal definition for racist and xenophobic crime, or reintroduce dual criminality, those who think they are exercising free speech will have to be careful what they say and where.
Jodie Blackstock is a barrister and Senior Legal Officer (EU: Justice and Home Affairs) at JUSTICE