12 Jul Saving the NatWest Three from the Americans
There is a firestorm brewing in the United Kingdom over the attempted extradition of three NatWest bankers allegedly involved in the Enron scandal. The nub of the problem is the US-UK Extradition Treaty has been signed into British law through legislation passed in 2003, but the U.S. Senate has yet to ratify the treaty. As a result the UK is under statutory obligations to provide evidence of criminal wrongdoing to U.S. authorities, but there is no such reciprocal obligation for the United States.
A surprising coalition of business leaders, human rights advocates, and politicians are lobbying on behalf of the bankers, and an emergency session is being held in the Commons to address the issue. The three are seeking assurances that they will be allowed to post bail in the United States and return to Britain rather than languish in a U.S. jail.
The American justice system is being sharply criticised, with suggestions that the bankers will be forced to wear cuffs, shackles, and Gitmo jumpsuits, and editorials arguing that the three bankers should not be extradited. “America would understand if we felt there was something fundamentally wrong in sending these men into a foreign jurisdiction, to stand before a jury that could have a far less neutral set of preconceptions about their dealings with Enron than they would meet in a British courtroom. Americans might feel temporarily shunned by their most intimate international friend, but they would respect us in the morning.”
The core of the problem appears to be a reciprocity issue in which speedy action by the United Kingdom in implementing a bilateral treaty was not met with the same urgency in the United States, resulting in a temporary state of unilateral obligations. It is forcing Blair to defend his actions because of our inaction.
More fundamentally, one can also hear echos of longstanding distrust over the American justice system and an uncertainty that the NatWest three will be given a fair trial in the United States. It says something about the foreign perception of our criminal justice system if three bankers who allegedly engaged in criminal misconduct arising from the Enron scandal can become a cause célèbre in the United Kingdom.
I think there’s also outrage that these guys are alleged to have commite a crime in England so people are worried about why they are going to be tried in American courts. The issue of reciprocity is strong but I think you hit the nail on the head when you spoke about distrust of the US justice system and fears of bias in a case connected to Enron. One of thwm (I think it’s Bermingham) is Irish in some way so ‘Save the NatWest3’ posters are going up – the usual suspects of course but nevertheless it gives pause for thought
Roger – I was trying to figure this one out, too. The treaty itself (art 8.3) has a non-reciprocal provision under which the US doesn’t have to give anything more than the identity of the suspect and the nature of the crime, where the Brits have to provide reasonable cause to believe that the person actually committed the offense. So non-ratification by the US isn’t a problem on that score. I think there may be other procedural protections in the new treaty that aren’t in the old one (which continues to govern US extradition practice so long as the new treaty goes unratified), though it’s not immediately clear what they are. One slightly comic element to the story: A protest march composed of pinstriped British business people, reported here.
I suppose the non-reciprocity argument arises something like this: Article 23 (2) of the Treaty provides that the Treaty shall only enter into force upon the exchange of the instruments of ratification. However, under British constitutional law, international treaties do not form part of domestic law (See e.g. A &Ors v. Secretary of State for the Home Department (No. 2) [2005] UKHL 71, [2005] 3 WLR 1249, at para. 27, per Lord Bingham of Cornhill; this is, of course, in contrast to US law). Therefore, the Treaty cannot, even if it entered into force, serve as lawful authority for the British executive and judiciary to effect an extradition. For this reason, the Treaty obligations are, in a sense, transformed into British law by an Act of Parliament (see In re McKerr, [2004] UKHL 12, [2004] 1 WLR 807, at para. 65, per Lord Hoffmann). The Act relevant here did not allow for a suspension of effect as between the US and the UK until the Treaty enters into force. Hence, the Magistrates’ Court was in no position to refuse extradition as in any sense illegal. As it is, the US government is not entitled to have the three extradited under… Read more »