French Holocaust denier refused permission to appeal against extradition back to France

About this case:

• Citation:
  [2024] HCJAC 2
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

Vincent Raynouard argued that the sheriff had erred in finding his conduct was an offence that merited extradition on the basis that he likely would not have been prosecuted in Scotland. The Crown’s position was that the sheriff that had applied the correct legal test on whether the conduct was grossly offensive, citing dicta from DPP v Collins (2006).

The appeal was heard by the Lord Justice General, Lord Carloway, together with Lord Pentland and Lord Tyre. Mackintosh KC appeared for the appellant and Harvey, advocate depute, for the Crown on behalf of the French Republic.

Go beyond denial

On 17 June 2015 at the Court of Appeal in Caen, the appellant was convicted of the offence of disputing the existence of a crime against humanity by uploading to the internet two videos intended to cast doubt on the existence of the Holocaust generally and in particular the gas chambers at Auschwitz. After the issue of an extradition warrant, he appeared at Edinburgh Sheriff Court in November 2022 and was remanded into custody.

France later withdrew the warrant, however a second warrant was issued by an investigating judge in France on 22 November 2022 relating to seven other videos posted by the appellant. In these videos, he challenged the occurrence of other war crimes and crimes against humanity, including the burning alive of women and children in a village church in Oradour in central France during World War 2, and described Hitler as “the most slandered man”.

The sheriff considered that the appellant’s conduct would not constitute breach of the peace in Scotland, but that it would constitute an offence of improper use of a public communications network under section 127(1) of the Communications Act 2003 with a likely penalty of up to 12 months’ imprisonment. Accordingly, he ordered extradition of the appellant.

Counsel for the appellant submitted that the sheriff had been entitled to find that the conduct was offensive, but for the communication to be grossly offensive as to merit extradition it would have to go beyond simply Holocaust denial. Such a speech offence would likely not be prosecuted in Scotland and while it might attract a custodial sentence in France, the appellant had already been in custody for 13 months and France had given no indication of the likely sentence.

Patent falsehood of material

Delivering the opinion of the court, Lord Carloway said of the 2003 Act: “Section 127 of the 2003 Act creates a criminal offence of posting online material which is ‘grossly offensive or of an indecent, obscene or menacing character’. It is not necessarily a crime to communicate grossly offensive material otherwise, although it may be depending on the context. Whether something is grossly offensive is a question of fact. The court agrees with DPP v Collins that the test is whether the material is ‘couched in terms liable to cause gross offence’.”

He continued: “The denial of the holocaust is a gross insult to the members of the Jewish and other communities whose members perished at Auschwitz and Birkenau. The same applies to those living with the memory of Oradour. It is not necessary to be a member of the relevant communities to be grossly offended by such statements; any reasonable person would be. The other statements by the appellant about the Jewish community are anti-Semitic racism. Although it is not an offence to hold these views and, in certain contexts, to express them, it is a breach of section 127 of the 2007 Act to communicate them to the public on the internet.”

Assessing the proportionality of extradition, Lord Carloway said: “The court agrees with Miraszewski v Poland (2015) that the likelihood of a custodial sentence in the extraditing jurisdiction is not determinative of, although it is important to, proportionality. It agrees also that seriousness is to be judged, initially, against domestic standards, but that the views of the requesting state should be taken into account. Although the ‘public interest’ is not expressly mentioned as a factor in section 21A, it is the umbrella covering the whole process of reciprocation and comity in extradition proceedings.”

He concluded: “The sheriff was entitled to hold, for the reasons given in relation to the section 127 analysis, that the seven videos do not amount to a minor offence but one of relative seriousness judged by Scottish standards. He was equally entitled to have regard to the penalty of 12 months imprisonment, which was imposed upon the appellant on his last conviction and hence to consider that the likely penalty in France would be a reasonably lengthy custodial sentence of up to 12 months. In such circumstances, the appellant’s extradition cannot be regarded as disproportionate.”

The application for leave to appeal was therefore refused.