Judicial Review: decision by Serious Fraud Office on prosecution would not violate rights

Three former NatWest bankers facing allegations of fraud in the US should be extradited across the Atlantic, the British Attorney-General told the IBA conference.


The three have taken the unusual step of bringing judicial review proceedings in the UK, challenging the Serious Fraud Office's (SFO) decision not to prosecute, which left them open to being extradited to the US (see [2005] Gazette, 17 February, 6). The three deny the allegations and have said that moves by the UK to extradite them to the US would breach the Human Rights Act 1998.


In his strongest public announcement yet on the case, Lord Goldsmith said it would undermine the principles of extraterritoriality should they succeed. He also maintained: 'A decision by the SFO not to prosecute would not violate their rights under the European Convention on Human Rights.'


The three &150; David Bermingham, Gary Mulgrew and Giles Darby &150; are represented by Mark Spragg of London-based law firm Jeffrey Green Russell. He told the Gazette he was 'disappointed that the Attorney-General was commenting on the case ahead of the review by the court'.


He continued: 'We've been trying to discuss the problems of the lack of reciprocity in the new extradition treaty with the Home Office and with politicians but they always tell us that they cannot comment on an individual case. So I find it fascinating that the Attorney-General is now doing so in an adverse way.'


The judicial review hearing is set for 14-15 November. Mr Spragg said the US government applied to be an interested party but recently withdrew that application. He also said that it was accepted by all parties that the allegations do not concern a fraud against Enron in the US - as originally suggested - but against the NatWest bank in England.


Commenting at the Prague conference more widely on the principle of extraterritoriality, Mr Goldsmith said it 'is not and should not be a free-for- all'. However, he forcefully backed the concept in general terms, saying it was necessary in a global world 'to tackle international wrongdoing'.


The Attorney-General said the laws of various jurisdictions needed to be brought closer together so there was less likelihood of conflict. He backed the development of mutual co-operation for the enforcement of laws across borders and for governments to have regard for the principle of comity when developing legislation.