Home Affairs CommitteeWritten evidence submitted by David Bermingham

I am one of the NatWest Three. I believe I can be of assistance to the Committee in two distinct ways. First, in giving an insight into the practical difficulties faced by individuals extradited to stand trial in the US. Second, in challenging some of the conclusions of the Scott Baker Review. In this brief, I deal only with the latter, because I am aware that the Committee will shortly take evidence from Sir Scott Baker himself, and so may wish to be aware in advance of some of the arguments that might be made.

Brief Background

1. I was charged by the United States in June 2002, along with two former work colleagues, of defrauding our London employer, a division of National Westminster Bank PLC (by then wholly owned by the Royal Bank of Scotland), out of $7.3 million in a transaction involving two senior officers of Enron. The entire basis for the case against us consisted of information that we ourselves had given to Britain’s Financial Services Authority in November 2001.

2. In February 2004, some six weeks after the Extradition Act 2003 had come into effect, the US sought our extradition.

3. In February 2005, we brought an action in the High Court against the Serious Fraud Office for refusing to investigate our case.

4. In February 2006, we lost our High Court appeal against extradition, and our case against the SFO. The High Court certified three points as being of public importance, and we sought leave to appeal to the House of Lords.

5. In March 2006, we were responsible for the drafting of the original “forum” amendments that were proposed by the Conservatives and Liberal Democrats during the passage of the Police & Justice Bill.

6. In June 2006, the House of Lords refused to hear our appeal against extradition.

7. On 12 July 2006, there was an emergency debate in the House of Commons, proposed by Nick Clegg MP. MPs voted 246 to 4 in favour of halting the extradition and changing the law.

8. On 13 July 2006, we were extradited to Houston, Texas. Because of the direct intervention of the Prime Minister and Attorney General, we were not incarcerated on arrival, but were granted bail. We were subject to electronic monitoring and curfew, could not travel outside the Houston area, could not see one another other than in the presence of an attorney, and were required to put up all of our liquid resources, in cash, as bail surety.

9. On 27 November 2007, after several delays to the trial date, we agreed to enter into a plea agreement with the Department of Justice. We pleaded guilty to one count of failing to inform our employer of the opportunity to make an investment, and were sentenced to 37 months in prison. A key term of the deal was that the Department of Justice agreed to expedite a transfer back to the UK under the terms of the prisoner transfer agreement.

10. In December 2008 we were repatriated to the UK to serve the remainder of our sentences under UK rules.

11. We were released on electronic monitoring and curfew in September 2009.

12. I made a written submission to the Scott-Baker review, which is attached hereto, dated 30 December 2010.1 I asked to be allowed to give oral evidence to the Review panel, but was never called.

13. I gave oral evidence before the Joint Committee on Human Rights in February 2011. The transcript is available on the Human Rights Committee web page.2

The Issues with the Scott Baker Review—General Observations

14. Sir Scott Baker’s team appear to have construed their terms of reference exceptionally narrowly, limiting themselves tightly to the wording of the questions posed by the Home Office. This would appear to be an opportunity missed, because in reality what was needed was a proper analysis of what our extradition laws really should be about. The result could best be described as a treatise on expeditious process, rather than a more balanced analysis as to the workings of our system, and what role extradition should play. It makes the fundamental assumption that all extradition requests should be honoured unless there are some strong factors mitigating against, rather than asking whether in fact extradition should be seen as a last resort in the interests of justice, given its potentially catastrophic effects on individuals and their families. It is perhaps for this reason that it has been so roundly attacked.

15. Sadly, not one defendant or counsel representing defendants was asked to give oral evidence to the Review panel. During the period 4 April to 22 June 2011, the Review Panel took oral evidence from a significant number of individuals and organisations, but an analysis of those interviewed (listed at pp 341–343 of the Review) shows that the vast majority were either directly involved in the prosecution of cases, or the administration process, or Government. A neutral observer might conclude that the Review’s findings reflect in large part the testimony of those interviewed. I have no idea whether other defendants or people with practical experience of extradition were interested in giving evidence, but the fact that I asked and was never called says something in itself, given the significance that our arrangements with the US have in the Review.

16. This lack of balance by way of evidence is in stark contrast to the inquiries by both the Home Affairs Select Committee and the Joint Committee on Human Rights, where several individuals have been called who have direct experience of extradition.

17. Also in contrast to the Parliamentary Committee inquiries is the fact that not one single submission to the Scott Baker inquiry, nor the transcript of any oral evidence session, is available to the general public, making it all but impossible to see whether the Review’s findings are even representative of those that have made submissions or given oral evidence. All evidence to the JCHR, for instance, whether oral or written, can be found on their Parliamentary web page.

Specific Issues

18. I will limit my specific criticisms of the Scott Baker review to three distinct areas where I believe, bluntly, that the Review panel has got it wrong in their findings. These areas are “forum”, the US/UK Treaty, and the issue of repatriation of sentenced persons. I believe I am qualified to speak on all three given that ours was the first high profile case on forum and the US/UK Treaty, and I have actually been repatriated as a sentenced person under the terms of the Repatriation of Prisoners Act 1984.

Forum

19. The Scott Baker Review deals with Forum on pp 205–230. In brief, it concludes that there is no need to activate the forum bar that currently sits inactive in the legislation, either for Part 1 or Part 2 territories (ss 19B and 83A respectively).

20. At paragraph 6.67 of the Review, the detailed explanation for the decision is set out:

6.67 In our opinion, the implementation of the forum bar would have a detrimental impact on the scheme of extradition with no corresponding benefit to outweigh the disadvantage. We have reached this conclusion having regard to the following matters:

(i)The decided cases suggest that the issue of forum does not in fact create unfairness or oppression. In each of the cases in which it was raised, the forum argument was dismissed and for the reasons set out above, the cases would have been decided no differently if sections 19B and 83A had been in force.

(ii)The forum bar would only operate in circumstances where the courts had decided that extradition was otherwise appropriate. In other words, it would only have any application in circumstances where extradition was not barred for any statutory reason.

(iii)The forum bar would only operate in circumstances where the courts had decided that extradition was otherwise compatible with the Convention rights in the Human Rights Act 1998, including Article 8.

(iv)The forum bar would require a detailed investigation of the circumstances of the particular case, this would be a source of delay and undermine international cooperation in the fight against crime.

21. Dealing with each of the above in turn:

(i)This is a quite astonishing statement. How could the panel possibly judge what might or might not have been the result of detailed legal argument based on the forum amendments, when no such legal or factual arguments were ever run because there was no such forum amendment in operation?

(ii)This is a rather bizarre statement. You could make exactly the same point about any single bar to extradition within the Act. No bar to extradition would fulfil its purpose as such unless the extradition would otherwise proceed.

(iii)Ditto.

(iv)This is not necessarily true. The conclusion that a detailed investigation would be necessary was predicated on the Review’s assumption that the forum bar would be as currently drafted (see paras 6.10 to 6.18, and in particular para 6.10). The original forum bar as proposed by the Conservatives and Liberal Democrats in 2006 would have had a presumption against extradition if the case could be heard in the UK. The significance of this is twofold. First, it embeds into our legislation a presumption that a trial in the UK where there is UK jurisdiction is preferable to extradition as a means of ensuring justice. Such a concept would do no more than bring the UK into line with almost all other countries in their attitudes to extradition.

Secondly, an almost certain consequence of having such a provision would be a significant fall in the number of extraditions sought by foreign countries. If the prosecutors knew that they would have to make a reasoned case before a judge as to why it was better that the trial should be held abroad, then in all probability only those cases where extradition really is the best option would be brought. In all other cases, the prosecutors would agree that the UK authorities could deal with the matter, or the case would not be brought at all. This could not possibly be construed as “undermin[ing] international co-operation in the fight against crime”. It would act as a measure to ensure that extraditions are only sought in cases where they are genuinely appropriate as a means of ensuring justice.

22. Para 6.26 details a number of high profile cases in which forum was said to have been raised during extradition proceedings. The purpose of this paragraph is evidently to demonstrate that the result would have been no different had s 19B or 83A been in force. This paragraph is particularly striking, for the following reasons:

(i)Every single case cited involves a request by the US. Inadvertently, perhaps, the Review panel has highlighted why it is that the US arrangements cause such controversy. The US routinely adopts an extremely aggressive extra-territorial approach to its jurisdiction, criminalising the conduct of people who may never have set foot on its soil. No other country with whom we have extradition relations adopts such a policy.

(ii)The Review seeks to demonstrate that just because a case could be heard in the US, therefore the argument on forum would have been lost. For instance, citing our case at para 6.26 (i):

In Bermingham, the District Judge and the High Court found that the case had very substantial connections with the United States and was perfectly properly triable there: the prosecution witnesses were in the United States and there was a “significant US dimension to the whole case”. Laws L J stated, “It would be unduly simplistic to treat the case as a domestic English affair.”

The point is that if s 83A had been operative, we would have been able to produce a wealth of materials demonstrating why a UK trial would have been eminently more appropriate. But we could not. If you applied the Eurojust Guidelines to the circumstances of our case, it is inconceivable that we would have lost an argument on forum argument.

(iii)Absent from the analysis is one single European Arrest Warrant case, or indeed the troubling US case of Babar Ahmad, where the Senior Magistrate Timothy Workman commented as follows in his judgment: “This is a troubling and difficult case. The defendant is a British citizen who is alleged to have committed offences which, if the evidence were available, could have been prosecuted in this country …”

(iv)In every single one of the cases cited except that of Abu Hamza, David Perry QC (a member of the Scott Baker panel) represented either the US Government in the extradition, or the UK prosecuting authorities in refusing to consider a UK prosecution. In Hamza, David Perry had previously prosecuted Hamza in the UK courts for incitement to murder.

23. At para 6.69 on page 228 there is a quote from Lord Lloyd:

6.69 As Lord Lloyd of Berwick noted during Parliamentary debates on the forum bar:

“The question of whether to prosecute must be for the prosecuting authorities and it follows that the question of where to prosecute must also be for them. Where there are two competing jurisdictions it can only be resolved by agreement between the prosecuting authorities in the two different countries. I cannot see how it could conceivably be resolved by a judge in this country.”

24. It is difficult to understand the relevance of this quote in the Review. By way of balance, the Review might have noted, but did not, that their Lordships debated the issues of the forum amendments and the US/UK Treaty at significant length during three sessions in the period 11 July 2006 to 7 November 2006 during the passage of the Police & Justice Bill. On 11 July 2006, the vote was 192 to 109 in favour of both forum and Treaty Amendment. On 1 November 2006, the vote was 189 to 152 in favour of forum and Treaty amendment. Only on 7 November 2006, when the Tory Peers were ordered to abstain so as not to force the Government to use the Parliament Act, did the Upper House vote against forum and Treaty amendment, by 174 to 96.

25. Consequently, a neutral might observe that while Lord Lloyd is quite entitled to his view, his is demonstrably the minority view in the upper chamber. His quote in the Review, therefore, seems out of place.

26. At paragraph 6.77 on page 230, the Review states that “Whilst a small number of high profile cases have highlighted the issue of forum, we have no evidence that any injustice is being caused by the present arrangements.” Perhaps if the Review panel had taken evidence from some of the people who have been through extradition, they might have had cause to change their view on this.

27. At paragraph 6.78 on page 230, the Review states that “The extradition judges at City of Westminster Magistrates’ Court could not think of any case already decided under the 2003 Act in which it would have been in the interests of justice for it to have been tried in the United Kingdom rather than in the requesting territory”. This is at odds with the inference by District Judge Workman in the case of Babar Ahmad, but since the evidence of the extradition judges to the Review is not publicly available, it is impossible to second guess what may have been said.

The US/UK Treaty

28. The Review panel has confined itself to the narrowest possible analysis of the Treaty. As it states at para 7.32 on page 238: “For the purposes of our Review we believe it is necessary to consider whether there is any difference between the probable cause test and the reasonable suspicion test.”

29. Thereafter follows an exhaustive analysis of the practical differences between the two, which of course are concluded to be minimal.

30. The Treaty imbalance exists not in terms of a standard of evidential test, but in the total lack of one in the UK courts. In effect, the adjudication as to whether a case meets the tests of either probable cause or reasonable suspicion is done in the US, whether an extradition request is outbound or inbound. To put it another way, if someone in the US is wanted by the UK authorities, that individual has the right to a probable cause hearing in a US court at which the evidence is discussed. If someone in the UK is wanted by the US, there is no such evidential hearing in the UK.

31. The principled position of the US Government, as evidenced by its bilateral treaties with nearly 130 nations, is that it is happy to provide evidence in support of its requests for extradition. Since the US Constitution requires that other countries provide such evidence for incoming requests, this should hardly be a surprise.

32. Indeed, the US does not have to provide evidence in support of its requests to only three countries; France, which will not extradite its own citizens to the US; Ireland, which will not extradite if the crime could be deemed to have been committed on Irish soil or if the Irish prosecutors have already investigated and declined to prosecute; and the UK.

Repatriation of Prisoners

33. The Review touches on the issue of whether the Extradition Act should contain provision for the courts or the Home Secretary to require that someone being extradited should be returned to the UK to serve any sentence if convicted. The Review acknowledges, at paras 4.26 to 4.33 on pages 83–84, that article 5(3) of the Framework Decision permits countries to make such conditions a term of extradition.

34. Seemingly without any detailed analysis, however, the Review concludes at para 11.53 on page 329:

“So far as Article 5(3) is concerned, we see no reason to enact a specific provision to cater for the return of nationals and residents to the United Kingdom for the purpose of serving any custodial sentence passed in the issuing Member State. We have concluded that this is adequately catered for by the Repatriation of Prisoners Act 1984 and the recent Framework Decision on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union. However, if the Framework Decision does not result in more nationals and residents serving their sentence in the United Kingdom, rather than being subject to European arrest warrants, then the Government may wish to consider introducing a provision to reflect this guarantee”.

35. The above conclusion is noteworthy for the following reasons:

(i)No consideration whatsoever has been given to implementing such a provision for Part 2 countries.

(ii)The introduction of such a provision would be extremely straightforward for Part 1 countries, although in the case of Part 2 countries it would probably need bilateral agreements.

(iii)The conclusion betrays a lack of understanding of the practicalities of the Convention on the Transfer of Sentenced Persons and the Repatriation of Prisoners Act (“RPA”).

36. As to the last of these, we were a very good example. We broke all known records for speed of repatriation from the US under the RPA, because we had secured the agreement of the prosecutors to expedite any transfer as part of our plea agreement. Even so, the process took just over six months and could not begin until we had entered the US prison system. In many cases it can take years.

37. The US system is covered by a Federal Bureau of Prisons Program Statement.3 It is a cumbersome process involving multiple layers of approval, with the ultimate discretion lying with the Office of Enforcement Operations (“OEO”), within the International Prisoner Transfer Unit in Washington DC.

38. OEO routinely refuses any request where the defendant has not served at least half of the sentence, or where there is any monetary penalty still outstanding. I was in prison in the US with several inmates who had had successive applications turned down. No reason needs to be given by OEO, and once a refusal is handed down, the inmate cannot then reapply for two years.

39. The British former chief executive of RefCo, Phillip Bennett, was jailed for 16 years in the US for fraud in July 2008. His request for transfer to the UK was recently refused.

40. The British chief executive Ian Norris was required to serve all of his sentence in the US (where there is no parole in the Federal system). This is because his sentence of 18 months was handed down only after he had already spent several months in prison after conviction. By the time of sentencing, therefore, he had only around 12 months left to serve. As the process will take an absolute minimum of six months, and as the UK cannot accept a prisoner who has less than six months remaining on his sentence at the point of transfer, there was therefore no point in Mr Norris making an application. The consequence was that he served the equivalent of a UK sentence of nearly three years (because in the UK he would have been entitled to automatic release at the halfway point of his sentence, and indeed would in all probability have spent only four and a half months in prison and four and a half months on electronic monitoring under the Home Detention Curfew scheme), in a US prison cell some 4,000 miles from his aged wife.

41. Without a Government to Government provision on such matters, the defendant becomes a hostage to fortune. The prosecutors in our case told us that if we agreed to plead guilty, they would agree in writing as part of the deal to support and expedite a transfer home. If, by contrast, we went to trial and lost, they would ensure that we spent our full sentences (estimated at around 10 years) in a US prison, without parole. This is a fantastically powerful weapon, and capable of ensuring that defendants will plead guilty to something they have not done, rather than run the risk of spending many years in a faraway prison. The prosecutors in the case of Gary McKinnon made much the same threat/inducement to him in 2006.

42. Various countries have such repatriation provisions in their treaties with the US, including the Netherlands and Israel. Leaving the situation as it is will be a guarantee that many British citizens will spend a very long time in foreign prisons, and there will be nothing that the UK Government will be able to do to secure their repatriation under the RPA, as is the case with Mr Bennett.

14 December 2011