The case of the three bankers accused of fraud has exposed shortcomings in the uk’s extradition agreement with the us. What is more, lawyers tell Grania Langdon-down that human rights are at risk
While terrorism has inevitably dominated the extradition agenda since 11 September 2001, developments in extradition law are posing many challenges for lawyers specialising in this field – and none more so than the case of the three ex-NatWest bankers, dubbed the Enron Three, who are facing fraud charges in the US.
Mark Spragg, a partner and white-collar fraud law specialist at London firm Jeffrey Green Russell, is acting for the three bankers who deny accusations that they defrauded NatWest out of $7 million (£3.75 million) in relation to the sale of an asset to Enron. He says the case has been ‘hugely depressing so far’.
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Last month, Bow Street Magistrates’ Court agreed that the three businessmen should be extradited to the US to face trial, even though all the witnesses, the documents and the alleged victim are here. The next stage, says Mr Spragg, is to make representations to Home Secretary David Blunkett, who has to consider whether he should make the extradition order. If those fail, the men will appeal to the High Court and, if necessary, the House of Lords and the European Court of Human Rights.
The Extradition Act 2003, which implemented the European arrest warrant – replacing extradition between 16 European Union members – and removed the need for designated countries, such as the US, to prove a prima facie case against a defendant, has only been in force for 11 months, so longer-running cases are still being heard under legislation passed in 1989.
One key change is that the home secretary no longer has discretion over extradition decisions. However, he is still under an obligation to consider various matters before approving an extradition order, including whether there are ‘specialty’ arrangements with the requesting state, which ensure defendants are only prosecuted on the charges under which they are extradited.
Mr Spragg says: ‘The idea behind the [2003] Act is to simplify the extradition process and make it a more administrative function. That is fine provided there are checks and balances. The natural consequence of removing the home secretary’s discretion must be that the court must now look at the human rights issues. The Act either requires this or it is deficient.
‘In our case, the district judge refused to do that, throwing out all our article 8 (right to respect for private and family life) arguments. The Home Office says the Americans have a tried and trusted system, so there is no need for any human rights consideration under article 6 (right to a fair trial). Unless the High Court grapples with these issues and gives some guidance, the Act will have to be rewritten or our human rights will just be overridden.’
What is needed, he says, is some degree of certainty so solicitors can advise clients that either their human rights are not seriously inconvenienced and they will be extradited or they have a deserving case and should expect to be protected by the court. ‘If not, the Enron Three situation will just be replicated because there are several more cases in the pipeline where City businessmen are likely to be whisked over to America in the same fit of enthusiasm.’
Mr Spragg argues that the US routinely refuses to ‘observe the niceties’ of the specialty rule, a point he is making in his representations to Mr Blunkett.
He contrasts the bankers’ case with that of the Muslim cleric Abu Hamza. He says the three men want their case heard here but the UK prosecuting authorities are not interested. The US sought the extradition of Abu Hamza but it was put on hold – ‘leaving the American authorities hopping mad’ – when the Crown Prosecution Service decided to charge him with domestic offences.
For Louise Delahunty, a partner with London fraud specialist law firm Peters & Peters, the new Act means that defendants’ ability to challenge extradition is curtailed. She is also concerned that certain requesting countries, such as the US, no longer need to produce evidence of a case to answer. ‘This is arguably disproportionate as the UK requesting extradition from the US still has to show “probable cause”.’
Mr Spragg says there is a ‘head of steam’ building over the US’s lack of reciprocity and its failure to sign the 2003 UK/US Extradition Treaty, with the Liberal Democrats calling for the Extradition Act to be revoked. While the Home Office argues that other countries, such as France, accept that lack of reciprocity, Mr Spragg says the difference is that, unlike the UK, the French do not have to extradite their own nationals and will prosecute them in France if asked by the requesting state.
Michael Caplan QC, a senior partner with London firm Kingsley Napley, acted for the former Chilean dictator General Pinochet in his successful fight against extradition to Spain. ‘That was a one-off, but some people tend to associate you with the client and almost take offence because I was acting for him,’ Mr Caplan says.
‘It is difficult to predict what the result would have been if his case had come under the new legislation. However, I don’t think it would have turned out any differently because mental and physical health are still a bar to extradition and that was the reason the then Home Secretary Jack Straw stopped the extradition during the appeal stage.’
He says extradition is becoming increasingly complex. ‘You can’t just dip into it or you do it at your client’s peril. I forecast there will be a lot more European requests and it will be interesting to see how the European arrest warrant works out, now there is little opportunity for intervention by the home secretary or even by the courts.’
Robert Roscoe, a partner with central London firm Victor Lissack, Roscoe & Coleman, maintains that the new legislation has weighed matters in favour of the requesting state over the individual. ‘The Human Rights Act does build in safeguards and I am not unhappy about the removal of the home secretary’s discretion because the Act sets out the bars to extradition.
‘What I am sorry to lose is the ability to argue “triviality”, because we don’t have any system for filtering requests. I had a case of a Czech wanted as the look-out man while a £50 radio was stolen from a car – that is not what extradition is supposed to be about.’
Unusually, practitioners have few complaints over legal aid, which they say is granted promptly. Mr Roscoe, former chairman of the Law Society’s criminal law committee, says this can tempt some criminal law specialist solicitors to try to do the work, but it is such a complex and technical area it requires an extradition specialist.
Colin Nott, senior partner with London solicitors Hallinan Blackburn Gittings & Nott, agrees. ‘Extradition is a niche area. The law is very different from the usual criminal process. While there isn’t a specialist panel for extradition, I think there is now a general recognition that it is too complicated unless you are experienced, and people who do normal crime tend to refer cases to firms like ours.’
When it comes to the law, he says everyone is still trying to grapple with the nuances of the new Act. However, he believes ‘one hundred per cent’ that it has tipped the balance in favour of the state over the individual, galvanised by the 11 September attacks.
Mike Pullen, a partner in City firm DLA’s regulatory group, advises clients on the European arrest warrant and the US/UK Extradition Treaty in the context of regulatory matters such as fraud and competition law. ‘I advise directors about managing regulatory risks, including the possibility they could be extradited. It comes a complete shock to most to know this could happen to them.’
Justice, the human rights and law reform group, will be spending the next two years as part of a European consortium monitoring the implementation of the European arrest warrant and following up on protections for suspects and detainees.
Director Roger Smith says: ‘We are also concerned where provisions negotiated within the EU have been extended to countries like the US where there aren’t the same protections. The way the UK/US Extradition Treaty was negotiated and the way we rolled over was regrettable.’
For Mr Caplan, time will tell whether the new Act has struck the right balance. ‘If we were having this conversation in five years’ time, it would be interesting to look back on the build-up of cases. Some people would say “wasn’t the 2003 Act the death knell for extradition lawyers?” I think the legislation may do a lot of things, but I don’t think it is going to end extradition as a practice area. There are interesting times ahead.’
Grania Langdon-Down is a freelance journalist
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