The NatWest Three worked for a subsidiary of the National Westminster Bank. They are accused of conspiring to defraud their employers and investors in the bankrupt US energy company Enron. In essence, they are accused of advising their employer to sell a stake in a subsidiary of Enron at well below its market price. They then left their employer, purchased a stake in the subsidiary which they were able to sell for a healthy (over £7 million) profit.

The British Government signed a treaty with the US Government which permits American and British courts to say whether there is sufficient evidence to justify the request for extradition and for the courts of the other country merely to enforce the extradition, effectively only considering whether it is possible for there to be a fair trial.   

There has been a furore in the UK Parliament as Britain has ratified the treaty, but the USA has not. This, it is said, means that it is not fair; British citizens can be extradited on the Americans’ say so; American citizens still can require the UK authorities to prove ‘probable cause’. The furore has not been assisted by denials by Tony Blair (on 5 July 2006) and by the American Ambassador to the UK (on 12 July 2006) that there is any difference. 

In an emergency debate on the legislation, the House of Lords voted to suspend the powers in respect of American requests for extradition until such time as the American Congress had ratified the treaty too. The House of Commons on Wednesday held an emergency debate on the issue, a sign of Parliament's disapproval of how the matter is being handled.

As a result of the uproar, the Government has said that it will try to persuade the US Congress to ratify the treaty; they have even sent a minister to America to persuade them. It is understood that the US Congress is not keen; it doesn’t want its citizens subject to British justice! One has to ask, if it’s good enough for us, why isn’t it good enough for them?

The Government is seeking assurances that the NatWest three will be granted bail so that they can return to the UK and prepare their defence. The American courts have not answered that request and because of the distinct roles played by the executive and judiciary -  what the Americans call the 'separation of powers' -  the US Government cannot provide any such assurances. 

The list of offences for which extradition is permitted by the UK legislation is retrospective. This means that it applies to acts that took place before the Extradition Act 2003 was passed. It also appears to mean that it applies to acts that were and are offences in the US, but which were not known as offences in the UK. Price fixing is one area in which this problem arises. In another case where the Americans are seeking extradition, Ian Norris, has been accused of price fixing on products between 1989 and 2000. Yet in the UK, price fixing was not an offence until 2003! The extradition request from the US authorities related to price fixing that took place in the UK and Europe but that it is claimed had an impact on the US. Is it really right that someone can be extradited to the US for an act which was not an offence at the time and which did not take place in the US?

The NatWest three face a jail sentence of up to 35 years if convicted for what the American’s call ‘wire fraud’. The evidence against them may well be partly based on statements made by American citizens in return for a reduced sentence obtained in what is called ‘plea bargaining’. If a fraud case were undertaken in the UK, no such plea bargaining could take place and the sentence that they would receive on conviction would be a fraction of what they face in the US. 

The cases illustrate real concerns about how individuals are treated under the new laws in ways which directly affect their wellbeing and their ability to defend themselves against charges brought against them.

Evan Price is a barrister specialising in public law, property and insolvency at 10 Old Square chambers in London.

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