THREE British citizens resident in this country — David Bermingham, Giles Darby and Gary Mulgrew — are facing extradition to Texas. The crime they may be charged with if extradicted is fraud in England on their employers, NatWest Bank. Most of the witnesses and most of the documentary evidence which would be needed by both prosecution and defence are in England. The only link with the US is the claim that Enron and two of its officers were participants in the alleged fraud.

An English court would be the obvious forum for the trial, but the Crown Prosecution Service (CPS) has considered the matter and so far has decided not to prosecute. If a trial had taken place here, the three British citizens — the “Enron Three” — could not have been extradited to the US, whether convicted or acquitted, because of the double jeopardy rule. But because the CPS has not brought a prosecution — presumably because it thinks there is not enough evidence to justify a prosecution — federal prosecutors in Texas have sought extradition. An order for extradition has been made in Bow Street magistrates’ court, and will be enforced unless the pending appeal of the Enron Three is allowed. If they are extradited, they are unlikely to obtain bail and will face months of detention in Texas pending trial. The costs of defending themselves at the trial will be enormous. They will be under great pressure to do a plea bargain, even if innocent, to avoid the costs of a contested trial.

This is not the only case. Another British citizen, Babar Ahmad, is currently held in Woodhill prison awaiting an extradition hearing to face a charge of fundraising for terrorists. Once again, he is not being prosecuted in the UK. It is claimed that his only link with the US is that his e-mail server was an American company.

How has it come about that British citizens resident here may be extradited to the US on charges of crimes which, if committed at all, were committed in the UK but which the British authorities have declined to prosecute? One reason is that American legislation has, in recent years, given American courts extraterritorial jurisdiction — that is, the right to prosecute offences committed outside the US — to an oppressive extent. But another reason is the feeble behaviour of the British Government in negotiating a new extradition treaty with the US.

This treaty was negotiated in secret. There was no parliamentary scrutiny of a draft treaty. The first the public knew about it was an announcement on March 31, 2003 that the treaty would be signed later that day. The treaty turned out to be extremely one-sided. Under the previous treaty, extradition could be ordered — in either direction — only if the application was supported by evidence showing reason to believe that the person concerned had committed an extraditable offence. Under the 2003 treaty this remains the case for extradition from the US to the UK, but extradition to the US can be ordered without such evidence. In effect, the US has a right to extradition virtually on demand. All it has to do is to put forward a statement of the facts it hopes to prove. Neither the Enron Three nor Babar Ahmad have a right to challenge those facts in the extradition process.

In the US, a treaty requires ratification by the Senate. In nearly two years since the treaty was signed, it has not been considered by the Senate. The Senate may never ratify it. The treaty has been lobbied against by the American Civil Liberties Union and the Ancient Order of Hibernians, an Irish-American pressure group. So, if the treaty has not been ratified, why is it being applied in the British courts?

The answer is that, in December 2003, the British Government took the extraordinary step of giving effect to the substance of the treaty by including the US in an Order in Council, made under the Extradition Act 2003, designating certain countries as countries to which people could be extradited without evidence as from January 1, 2004. As a result, there is no incentive whatsoever for the Senate to ratify the treaty and the UK does not even get the very limited improvements to the existing extradition arrangements which it is given under the treaty.

This is unacceptable. The result is that we have extradition arrangements with the US that are one-sided and can be seriously oppressive to British citizens or residents whose extradition is sought by the US. The least the Government should do is to revoke the designation of the US as a country to which extradition can be ordered without evidence until such time as the 2003 treaty is ratified. It would be better still to scrub the treaty and stick with the previous arrangements. And finally, this sorry episode greatly strengthens the case for parliamentary involvement in the treaty-making process by giving power for a select committee to scrutinise draft treaties and by requiring ratification of treaties by both Houses of Parliament.

The author, a QC, is a Liberal Democrat peer

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