UK/USA: Enron 3 case confirms extradition fears
01 August 2004
On 15 October 2004, Bow Street magistrates’ court in London recommended to the Home Secretary the extradition of three British investment bankers to Houston, Texas, in the United States. They face prosecution for their alleged defrauding of Nat West Bank, the British company they worked for, in a scam in 2000 with executives from Enron, the collapsed oil company. The three are to appeal the Decision.
Gary Mulgrew, Giles Darby and David Bermingham are being extradited under the 2003 UK Extradition Act. This implemented the European Arrest Warrant and streamlined procedures to more than 100 ‘category 2’ countries, including the US - in line with a draft 2003 Treaty with that country. [1] This Treaty removed the requirement on the US side to provide prima facie evidence of a crime when requesting the extradition of people from the UK (a statement of the facts will now suffice), but maintaining that requirement on the UK when it seeks someone’s extradition from the US (to satisfy the ‘probable cause’ requirement in the US constitution). [2]
Although the 2003 UK-US agreement is now being applied by the UK, it has not yet even been ratified by the US. It was sent by the US President’s office to the Senate Committee on Foreign Relations for scrutiny in April of this year. So if the UK wants to extradite someone from the US, procedures in the 1972 UK-US Extradition Treaty (and 1985 Supplementary Treaty) still apply. It remains to be seen if the US will ever in fact ratify the 2003 agreement because of the civil liberties concerns it has raised. [3] In the meantime the US can apparently ignore the provisions of its existing Treaty with the UK and request the extradition of UK citizens under the new Act, potentially taking advantage of its favourable provisions.
The defendants in the Nat West-Enron case argue that if they are to be prosecuted, they should face prosecution in the UK courts: the alleged offences were committed in Britain against a British corporation by British citizens. The UK Serious Fraud Office, on behalf of the US, intervened to say it would be more expedient to prosecute the three in the US and that a successful prosecution was more likely there than in the UK. In his approval of the extradition request, Judge Nicholas Evans agreed, offering the following conclusion:
I accept the defendants could have been prosecuted in the UK. There was, however, no obligation to prosecute them in the UK. They are not going to be prosecuted in the UK. The US wants to prosecute them in the US. The process is ‘necessary in a democratic society’ and proportionate.
Lawyers for the three say the UK Financial Services Authority has effectively cleared them of any wrongdoing and that they have repeatedly asked Nat West, and its parent Company, Royal Bank of Scotland to bring charges if they felt they had been the victim of a crime. RBS/NatWest has taken no action and continues to provide bank accounts for the men’s personal and business activities.
The defendants also argue that extradition would breach their fundamental rights under the European Convention and UK Human Rights Act (HRA), and that the US request should be refused in accordance with the few barriers to extradition that remain in the new UK procedure. They will almost certainly be refused bail if extradited to face federal charges and potentially bankrupted by the cost of their defence. They also argue that they will not receive a fair trial in the US because of the media interest in the prosecutions connected with the collapse of what was once the country’s seventh largest corporation. Their alleged co-conspirators at Enron have already entered guilty pleas and will testify against the three, further undermining the credibility of the prosecution, argue defence lawyers.
Liberty, the Human Rights organisation, has already indicated that it will intervene for the three in their appeal, arguing that the trial venue is a crucial c