Application For Leave To Appeal Under Section 26 Of The Extradition Act 2003 By Vincent Raynouard Against Hma (representing The French Republic)
| Jurisdiction | Scotland |
| Judge | Lord Justice General,Lord Pentland,Lord Tyre |
| Docket Number | HCA/2023/21/XM |
| Published date | 26 January 2024 |
| Court | High Court of Justiciary |
| Date | 26 January 2024 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2024] HCJAC 2
HCA/2023/21/XM
Lord Justice General
Lord Pentland
Lord Tyre
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
the application for leave to appeal under section 26 of the Extradition Act 2003
by
VINCENT RAYNOUARD
Appellant
against
HIS MAJESTY’S ADVOCATE (representing the French Republic)
Respondent
Appellant: Mackintosh KC; Dunne Defence
Respondent: Harvey AD, Stephen; the Crown Agent
__________________
26 January 2024
Introduction
[1] This is an appeal concerning a person who is accused in France of denying the occurrence of the Holocaust against the Jewish people during the Second World War and of inciting hatred on the grounds of, inter alia, race. The judicial authorities in France seek extradition of the appellant in order to try him for three such offences. The two primary questions are: (first) whether the conduct complained of constitutes an extradition offence, in terms of section 64 of the Extradition Act 2003; and, (secondly) if it does, whether it would be disproportionate to extradite the appellant in terms of section 21A of the Act. There is a subsidiary issue about the competence of what is said to be a cross-appeal.
Statutory provisions
[2] Section 64(2) of the Extradition Act 2003 provides that conduct constitutes an “extradition offence” if the conditions in sub-section (3) are satisfied. One of these conditions is that:
“(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom; …”
[3] Section 21A of the Act provides that a judge, who is required to make a decision concerning extradition, must consider:
“(1) … (b) whether the extradition would be disproportionate”.
In deciding this question, the judge has to take into account:
“(3) … (a) the seriousness of the conduct alleged to constitute the extradition offence; [and]
(b) the likely penalty that would be imposed if [the person] was found guilty of the extradition offence; …”.
The judge must not take any other matters into account (s 21A(2)).
[4] Section 26 allows an appeal against an extradition order, with leave of the court. It can allow an appeal, in terms of section 27, only if the judge at first instance ought to have decided a question differently and, if he had done, the person would have been discharged. In that event, the order for extradition would be quashed and discharge ordered. In the converse situation of the judge at first instance ordering a discharge, the extraditing state can appeal, again with leave, under section 28. In terms of section 29, an appeal will only be allowed on a similar basis to that permitted under section 27, in which event the order for discharge is quashed and the case remitted to the first instance judge with directions on what to do, had he decided the question correctly.
[5] Section 127(1) of the Communications Act 2003 is headed “Improper use of public electronic communications network”. It makes it an offence for a person to send:
“by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character”.
Procedure
[6] 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 posting online two videos, which were intended to cast doubt on the existence of the Holocaust generally and in particular the gas chambers at Auschwitz. The appellant was arrested on an extradition warrant and appeared at Edinburgh Sheriff Court on 10 November 2022. He has been in custody since then. A hearing took place on 21 September 2023. By this time France had withdrawn the warrant, having regard to the time which the appellant had already spent in custody. The proceedings, in that respect, were discharged.
[7] Meantime, on 22 November 2022, another warrant for the appellant’s arrest was issued by an investigating judge in France libelling three offences. These related to seven videos, which were posted online during the period September 2019 to April 2020, in which it was said that the appellant had belittled or trivialised a war crime, challenged the occurrence of crimes against humanity during the Second World War and incited the public to hatred or violence because of origin, nation, race or religion. At the extradition hearing, there were two questions which fell to be answered after a debate. These were: (first) whether the conduct alleged in the warrant constituted an extradition offence; and (secondly) if it did, whether the respondent’s extradition would be disproportionate.
The videos
[8] The sheriff considered particular passages in the seven videos. In the first, the appellant denied the occurrence of a massacre at Oradour, which is in central France; in particular, the burning alive of women and children in the village church. He asserted that the bodies of the women and children had been reduced to ashes because they had been killed in an explosion, rather than a massacre. The massacre was described by the appellant as the “official thesis”. He used that same terminology to describe the use of gas chambers at Auschwitz and went on to deny the existence of these chambers. He justified this denial under reference to the absence of openings in the roofs of the chambers, which would have been necessary to introduce the lethal gas. There were, he maintained, insufficient levels of cyanide residue in the walls and an absence of predicted consequential blue staining. In the second video, the appellant again denied the use of the gas chambers, notably those in the crematorium. He gave reasons why the...
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