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I. Recent Developments in UK Extradition Law

Published online by Cambridge University Press:  17 January 2008

Colin Warbrick  and
Colin Warbrick
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Extract

In July 2006, three bankers, all UK nationals, were extradited to the United States on charges of conspiracy to defraud their one-time employers, a British bank, a subsidiary of Natwest. The conduct took place under the shadow of the ‘Enron’ affair. The defendants were said to have conspired with senior officials of Enron. Enron was the subject of the largest corporate bankruptcy in US history. In comparison the sums involved in the Enron collapse, those at stake in what the papers called the ‘Natwest Three’ case were small, but the involvement of persons implicated in the Enron affair made the defendants of interest to US prosecutors. The cases enjoyed an unusual public profile, partly because the extraditions took place under the unique legal regime which governs US-UK extradition,1 partly because this case was simply one of several cases in which persons charged with what one might loosely call economic crimes were sought by US prosecutors2 and partly because the defendants argued that their offences (which they denied) were allegations of what were ‘really’ English crimes which should have been proceeded with here. Although the extradition aspects have loomed largest, this last matter, possible conflicts of criminal jurisdiction, is the most interesting.

Type
Current Developments: Public International Law
Information
International & Comparative Law Quarterly , Volume 56 , Issue 1 , January 2007 , pp. 199 - 208
Copyright
Copyright © British Institute of International and Comparative Law 2007

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References

1 United Kingdom-United States Extradition Treaty, Cm 5821 (not in force). The US Senate approved the treaty on 25 September 2006 but the end of October 2006, ratifications had still not been exchanged. For the facts of the cases, see Bermingham (n 16) paras 19–56.

2 See ‘Business News’ The Observer (23 10 2006) (Ian Norris).Google Scholar

3 European Convention on Extradition Order 1990, SI 1990/1507.Google Scholar

4 See Mackarel, M and Nash, S, ‘Extradition and the EU’ (1997) 46 ICLQ 948.Google Scholar

5 Framework Decision 2002/584/JHA on the European Arrest Warrant and surrender procedures between Member States.

6 Hansard, HL, Vol 673, cs 406–8 (30 06 2005) (Baroness Scotland).Google Scholar

7 eg Spain, see Warbrick, C, ‘New Treaty with Spain’ (1986) 35 ICLQ 428.Google Scholar

8 Extradition Act 2003, s 71(4).Google Scholar

9 Cmnd 6723, TS 16/1977.

10 Hansard, HC, Vol 450, c 1408–10.Google Scholar

11 Home Affairs Committee, ‘Extradition Bill’ HC 138 (2002).Google Scholar

12 Extradition Act 2003, s 223(6), (affirmative procedure). The Order is the Extradition Act 2003 (Designation of Part 2 Territories) Order, SI 2003/3334. The text of the US–UK Treaty was not available on the FCO Treaty site for several months after it was listed and the two attached letters referred to in the explanatory note are still not available from sources in the UK.

13 Belkxtoon, R, ‘Introduction’ in Belkxtoon, R and van Ballegooij, W, Handbook on the European Arrest Warrant (TMC Asser Press, The Hague, 2005) 5.CrossRefGoogle Scholar

14 Hansard, HL Vol 684, c 640 (Baroness Scotland, Minister of State, Home Office).Google Scholar

15 Supplementary Treaty on Extradition and Exchange of Notes, Cmnd 9565; See Warbrick, C, ‘Extradition’ (1986) 35 ICLQ 439Google Scholar; (1987) 36 ICLQ 404.Google Scholar

16 Bermingham and others (R on the application of) v Director of the Serious Fraud Office and the Home Secretary [ 2006] EWHC (Admin) 200.Google Scholar

17 Extradition Act 2003, ss 88, 97. Bermingham (n 16) paras 58 and 59.Google Scholar

18 ibid paras 63–5.

19 Soering v UK ECtHRs, A161, para 113.

20 ibid paras 106–33. An application by the defendants to the ECtHRs was rejected, <http://news.bbc.co.uk/go/pr/fr/-/1/hi/business/5120650.stm>.

21 ibid para 110.

22 [2004] UKHL 26, para 24.Google Scholar

23 Bermingham (n 16) para 116.

24 Launder v UK (1997) 25 EHRR CD 67.Google Scholar

25 Bermingham (n 16) para 118; later, para 128, he referred to the observations of Hale LJ in R (Warren) v Home Secretary [2003] EWHC 1177, though she also talked about the importance of giving effect to treaty obligations, para 40.Google Scholar

26 ibid para 129.

27 ibid para 124.

28 See also Joint Committee on Human Rights, Draft Extradition Bill HLI58/HC1140 (2002) 9–16.Google Scholar

29 Davies, G and Burger, R ‘Extradition post the NatWest Three’ (13 10 2006) New Law Journal 1542–3.Google Scholar

30 eg Lord Hodgson of Astley Abbotts, Hansard, HL, Vol 673, c 399 (30 06 2005).Google Scholar

31 Hansard, HL, Vol 684, c WA 123 (12 07 2006).Google Scholar

32 ibid c WA 139 (13 July 2006).

33 See Hansard, HL, Vol 684, c 635 et seq (11 07 2006).Google Scholar

34 Hansard, HC, Vol 450, c 1389 et seq (24 10 2006).Google Scholar

35 The reason for the delay in endorsement of the 2003 Treaty by the Senate was said to be the concern of Irish-American groups that the treaty made the return of Republican fugitives too easy. If it is true, it is without much substance. The Government has repeatedly made it clear that there are no distinctions between the criminal offences covered by the 2003 Treaty, eg Hansard, HC, Vol 450, c 1392 (Ms Ryan).Google Scholar

36 Hansard, HC, Vol 450, c 1389 (24 10 2006) (Parliamentary Under Secretary at the Home Office, Ms Ryan).Google Scholar

37 Hansard, HL, Vol 655, c 1063 (16 12 2003) (Baroness Scotland).Google Scholar

38 Hansard, HC, Vol 450, c 1396 (24 10 2006) (Ms Ryan).Google Scholar

39 Hansard, HC, Vol 450, c 1391 (24 10 2006) (Mr Howarth).Google Scholar

40 Raisi (2002) (unreported).Google Scholar

41 The House of Lords finally accepted the position of the House of Commons on the Police and Justice Bill, Hansard, HL, Vol 686, cs 649–84 (7 11 2006).Google Scholar

42 Address by the Attorney-General to the International Bar Association, Prague 28 Sept 2006, ‘How far can laws reach? The Problem of extraterritorial jurisdiction’. Available at <www.lslo.gov.uk/speeches.htm>.

43 Recall the difficulties which arose in the ‘Lockerbie’ incident about the proper forum to try the accused, see Aust, A ‘Lockerbie: The Other Case’ (2000) 49 ICLQ 278.Google Scholar

44 See Binning, P, ‘Shouldn't justice begin at home?’ (27 10 2006) New Law Journal 1625.Google Scholar

45 Hansard, HC, Vol 450, c 1393 (24 10 2006) (Ms Ryan).Google Scholar

46 The Minister said that if anyone extradited to the US was sent to Guanténamo, it would be in breach of the defendant's human rights (and possibly any assurances obtained from the US government as a condition for return) and British courts would refuse further extraditions, Hansard, HC, Vol 450, c 1396–7 (24 10 2006) (Ms Ryan).Google Scholar