Extradition should not be a one-way street
17 December 2007
The plea-bargain of the 'NatWest Three' means they will receive a term of imprisonment of three years and one month (reduced from their possible sentences of between 35 to - arguably - 210 years), and will be ordered to repay the £3.5m they defrauded from NatWest.
A series of arguments was submitted during the NatWest Three's campaign against the imbalance in the UK-US extradition regime. Are these arguments fruitless?My perception is that the opposite is true. The business community was substantially rocked by this case and it is likely there will be a renewed challenge to the legislation.
The extradition treaty between the UK and US was signed in 2003 and the disparity in its provisions was well rehearsed in the many challenges made by the NatWest Three. Businesspeople are not the terrorists at whom the provisions were aimed.
Furthermore, under the EU Arrest Warrant scheme, UK businesspeople now also risk arrest and removal to countries, for example former Soviet Block states, without their cases being properly tested in the UK courts. Extradition may be secured even if a regulator, such as the Financial Services Authority, has decided not to take any action against potential defendants in the UK.
The straightforward nature of removing a person to the US is only one part of the problem for businesspeople based in the UK, and if extradition takes place problems increase exponentially. Extradition should be the gate that stops people being removed to jurisdictions where they will not be treated fairly or in accordance with their human rights. However, on arrival in the US to stand trial, a person will face a very different criminal regime to that in place in the UK.
The NatWest Three were, unusually, released from jail on bond, but still had to spend a year and a half away from their families. Bail is far from being the normal process for financial crimes in the US. A defendant can face many months in jail before the trial takes place. A US high-security jail is the only option for a businessperson extradited from the UK, who will then have to face their time on remand without the prospect of frequent visits from friends and family.
The US evidential provisions are also very different from their English equivalents. Overseas witnesses cannot be compelled to give evidence in the US and a defendant cannot compel a US witness to testify because they can plead the Fifth Amendment. If convicted, not only will a person endure a lengthy prison sentence, but they might face prosecution for the same offence twice, once in a federal court and then by the state.
Once in the US, a person may have to stay there as there is no obligation for a court to agree to return non-US defendants to their home countries to serve their sentences. However, the NatWest Three hope that the proposed plea bargain will help secure their transfer to a UK low-security prison.
Finally, one cannot now write a piece about US-UK extradition procedures without a reference to the astonishing submission made in an extradition hearing last month on behalf of the US government that kidnapping, as an alternative to extradition, is acceptable under US law.
Some might say that the NatWest Three's lengthy ordeal over many years is punishment enough, or alternatively that they got off lightly. It is a stark reality that executives working in the UK must realise that the current regime allows them to be extradited to countries with very different criminal processes from our own.
The NatWest Three case is bound to serve as a spur to business leaders and all those who stand up for fairness to demand that the Government restores the balance to UK-US extradition arrangements and protects the rights of businesspeople based in the UK.
Colin Passmore, head of litigation, Simmons & Simmons