The case of the Enron Three brings to light shortcomings in the Extradition Act 2003 and an unfair concession, says Jeremy Summers

Three former NatWest bankers now face prosecution in the US for an alleged fraud involving the Enron scandal because of a law supposedly brought in to deal with terrorism.


The Extradition Act 2003 came into force on 1 January 2004, but applies to offences occurring prior to that date. Its original aim was to address the government's belief that extradition cases such as Pinochet had become too long and costly. However, in the wake of the 11 September 2001 attacks in the US, the legislation was embraced as part of the war on terror.


The Act divided the world in two. Category 1 territories, now all EU member states, were brought under the fast-track European arrest warrant procedure. All others countries, category 2 territories, still had to go through a formal, if streamlined, extradition process.


The issue with Enron is that some category 2 territories have to provide evidence to a UK court but others, notably the US, only have to give information. There are three obvious concerns over the US being granted this concession. First, the treaty in question was signed secretly by David Blunkett when still home secretary. If it was an appropriate exercise of his power, why did he not consult parliament before signing, and why was it kept from the public for two months?


Next, the treaty greatly reduces the protection afforded to British subjects when faced with extradition to the US. The Americans no longer have to satisfy a court here that there is prima facie evidence of a crime, and the home secretary's discretion to refuse extradition has effectively been abolished.


Finally, Mr Blunkett did not think it necessary for the treaty to be reciprocal. If the UK seeks extradition of a US citizen, it must still show probable cause. The US has so far refused to ratify the treaty to lower that threshold because of concerns that it would be unfair.


If the treaty were used simply to extradite terrorists it might, just, be understandable. But it is not - more than half the extraditions so far are for alleged white-collar crimes. The Enron Three and the 62-year-old Ian Norris of Morgan Crucible are the highest profile cases, but there are more than 100 other examples. The US has, in effect, appointed itself global prosecutor even if there is only a tenuous link between America and an alleged crime. It now seems to believe that, even if the company concerned is British then, as long as it has one US shareholder and, as long as one allegedly fraudulent message passes though the US, it will have jurisdiction and extradition can follow. A person extradited could then be held in custody while a case is assembled. Faced with prohibitive legal fees, the option of pleading guilty may be more attractive than being sentenced to spend the rest of their lives in prison if convicted.


Business is concerned, and rightly. The newly formed GC100, representing general counsel from FTSE 100 companies, recently told the Home Office that the law is 'lopsided' and being used against business in a way that was not intended. Confederation of British Industry director-general Sir Digby Jones went further, claiming that justice is being abused. As he put it: 'The law might be acceptable for someone who wraps Semtex around his body, but not for a 62-year-old executive with prostate cancer.'


The High Court recently refused to overturn the extradition order in the Enron case and the fight now moves to the Lords. In the interim, the jury is out as to whether the Enron Three will also become synonymous with another sad chapter in our criminal justice history.


Jeremy Summers is a partner at the London office of law firm Russell Jones & Walker