In the Media

Lopsided treaty a threat to justice, say professors

PUBLISHED July 10, 2006

Four of Britain's most eminent law professors have strongly criticised the extradition arrangements under which a trio of former City bankers - the NatWest Three - are being sent for trial in the United States.

The professors say that extradition arrangements with America are biased against UK citizens and that some of British justice's traditional guarantees are being undermined by political expediency.

All four expressed grave concern that, because the US has not ratified the 2003 extradition treaty, Britons can be packed off to America but the United Kingdom cannot have US citizens extradited as easily to Britain.

Maurice Mendelson, QC, the emeritus professor of law at London University, said: "My chief concern about the case of the NatWest Three is the lack of reciprocity in the operation of the extradition treaty. On the whole, extradition law is based on each state accepting the same obligations."

The Extradition Act 2003 was rushed through by David Blunkett, then Home Secretary, following the September 11 attacks. It was meant to help clamp down on international terrorists, but it has been used to bring Britons accused of white-collar crimes to trial in the US.

Keith Patchett, the emeritus professor of law at the University of Wales, said that issues in the NatWest Three case "raise basic questions about the preparedness of the [UK] Government, demonstrated in other matters too, to compromise vital legal protections honed over generations".

Prof Patchett is worried that American authorities seeking to extradite a Briton are no longer required to produce prima facie evidence of wrongdoing. "I am far from happy about the absence of safeguards with respect to the level of evidence that must be presented," he said.

The NatWest Three are alleged to have defrauded their former employer of about ?4 million by selling to themselves, at a knock-down price, a business that the bank owned. They deny all charges.

In trying to stave off extradition, the bankers - David Bermingham, Giles Darby and Gary Mulgrew - have argued that they should be tried in this country because they are British, their alleged crime was against a British bank, and the evidence and witnesses are all here.

But domestic prosecution authorities have refused to take action against them. "If there is insufficient evidence to base a prosecution here, should there not be an obligation on those seeking extradition to produce evidence that shows there is a sufficiency for a prosecution in the United States?" asked Prof Patchett.

The NatWest Three face trial in Texas because their alleged fraud came to light during an investigation into the ?40 billion collapse of Enron, the Houston-based energy giant. With only days to go before they are flown to America, it is still not too late for the Government to block their extradition.

Because the NatWest Three opposed their extradition through the British courts, they are unlikely to be granted bail. Instead they could spend up to two years in a high-security Texan jail awaiting trial. Such an outcome, they argue, would bankrupt them and hamper their efforts to mount a defence.

Robert McCorquodale, the professor of international law and human rights at the University of Nottingham, urged the Government not to send the NatWest Three to America, "without a memorandum of understanding on appropriate bail arrangements, including the provision of bail in this country".

Craig Barker, the professor of law at the University of Sussex, argued that the "highly lopsided" extradition treaty "takes away a lot of rights that previously existed" for British citizens.

He said: "If we are now extraditing our own nationals to a state which has fairly strict and harsh punishments, without having to see the evidence, that's a major reduction of the rights of accused persons."

Prof McCorquodale agreed: "This extradition treaty has not taken into account issues of human rights."

Prof Barker doubts that MPs "were fully aware of the ramifications of the apparently benign change in policy [in the 2003 Act]. Whether the Government was fully aware is a moot point".

Under pressure in the House of Commons earlier this week, Tony Blair, an Oxford-educated lawyer, denied there was an imbalance between Britain and America in the rules governing the provision of evidence for extradition.

His claim was rejected by Prof Patchett who said: "One sometimes wonders about the depth and quality of the Prime Minister's legal education."

Justice, the all-party legal reform group, has written to members of the House of Lords urging them to support an amendment of the Extradition Act 2003.

Justice wants courts to be able to block extradition "where part of the alleged criminal activity occurred in the UK and trial in the requesting state would not be in the interests of justice".