UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 644-iv

HOUSE OF COMMONS

ORAL EVIDENCE

TAKEN BEFORE THE

HOME AFFAIRS COMMITTEE

EXTRADITION

TUESDAY 10 JANUARY 2012

DAVID BERMINGHAM

Evidence heard in Public

Questions 208 - 279

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Oral Evidence

Taken before the Home Affairs Committee

on Tuesday 10 January 2012

Members present:

Keith Vaz (Chair)

Nicola Blackwood

Michael Ellis

Lorraine Fullbrook

Dr Julian Huppert

Steve McCabe

Alun Michael

Mr David Winnick

Examination of Witnesses

Witness: David Bermingham gave evidence.

Q208 Chair: Order. I bring the Committee to order and welcome Mr Bermingham, who has come to give evidence to us today. I refer all those present to the Register of Members’ Financial Interests, where the interests of all members of the Committee are noted. I ask everyone, including myself, to switch off their telephones, so that we are not interrupted.

This is one of the last sessions that the Committee will be holding in our inquiry into extradition. We had hoped that the American ambassador would be giving evidence this morning as well, but he is not able to attend, so we will have him at a formal session even though we have seen him in private.

Mr Bermingham, you are an old hand at this. I have been looking at the transcript of your evidence to the Joint Committee on Human Rights, so you can take it that members of the Committee are aware of the evidence that you have given there. The Committee and I would like to concentrate on the Scott Baker report and the conclusions of the learned judge, but also on issues that you think ought to be raised as a result of what you have seen so far. Thank you for your written evidence, which we all found extremely helpful.

You have not, as you pointed out to our sister Committee, stood trial for this particular crime. You entered a plea bargain, so, from your point of view, you have been through the extradition process. Looking at the two jurisdictions-the United States jurisdiction and our own in this country-do you think that they are comparable and compatible for someone who has decided to go over there and to plead guilty to an offence?

David Bermingham: At the risk of misunderstanding the question, may I ask whether you mean the two trial systems or the two criminal justice systems?

Q209 Chair: I think that the treaty-you have probably become an expert on the treaty, having had an opportunity to look at it as much as we have on this Committee-talks about a mutual confidence. You have to have confidence in a country that you are going to extradite your citizens to. Do you think that that mutual confidence is properly placed or is it misplaced? Is there anything in the system that you witnessed in America that made you feel that, if the trial had taken place here rather than there, or if the system had operated-you did not stand trial-here rather than there, you would have had a fairer hearing?

David Bermingham: Yes. I do not think that there is any doubt that, had we been in the UK, we would have gone to trial. There would have been no circumstance whatsoever in which there would have been any form of plea bargain. Ours was a case that should have gone to trial, and had we been in the UK, it would have done. There are several differences between the two jurisdictions, and, as I said in my evidence to the Joint Committee on Human Rights, I am neither anti-American nor anti-extradition. I want to put those cards on the table first and foremost.

However, there has undoubtedly, over the course of the last 20 years, been a very, very radical shift not necessarily in any of the constitutional protections that are afforded to citizens in the US, which are obviously not the same here, as none of those have changed, but in the way in which their criminal justice system works in practice. That has altered radically, and it started about 20 years ago with the imposition of the federal sentencing guidelines. What they did was create a matrix system by which if somebody is convicted, their sentence can and will be calculated. This is done outside of the judge’s discretion by the probation office in consultation with the prosecutors on the case. What that does, by reference to a matrix, is create results that can be astronomic. For instance, if you take the case of Bernard Madoff, he is serving a sentence of 150 years in prison. There is no parole in the federal system. They will carry him out of prison in a box. There are no two ways about it. That is as a consequence of the federal sentencing guidelines. They create this.

Q210 Chair: Is that also as a consequence of the plea bargain system? You make the point in your evidence to us that 98% of cases in the US system result in a plea bargain.

David Bermingham: That is wholly correct. The starting point is with the federal sentencing guidelines, which give a prosecutor in almost all categories of cases-not all, because some cases are very straightforward, such as offences against the person-and anything that involves a degree of complexity, such as cybercrime or white collar-type offences, the ability to charge multiple counts. Merely by the act of charging multiple counts, he produces a jeopardy for the defendant; if he goes to trial and loses, that can be hundreds of years in prison. The prosecutor can say to somebody, "Look. If I charge you with all these offences, this is the jeopardy that you face. If, on the other hand, you want to plead guilty to one of those offences"-I will give an example of one of the Enron defendants. Andy Fastow was charged originally with 98 counts, which, in aggregate, would have produced a sentence of about 350 years in prison. Even if he had only been convicted on 10% of those, he would have spent the rest of his life in prison. Alternatively, he could plead guilty, as he did, to one count. They waived 97 of the counts that were in the indictment to get him to plead guilty to one, and he was ultimately sentenced to six years in prison. The problem that you have is that, on a very human level, people are now enormously incentivised by the disproportionality that there this in sentencing.

Q211 Chair: Basically, you enter a plea bargain, because the alternative is so drastic.

David Bermingham: It is catastrophic.

Q212 Chair: Is that what happened to you? Is that what you are saying to this Committee?

David Bermingham: We took a very rational decision. There are other aspects that go into it. Some of them bore on us and some bear on other people. For instance, the costs of going to trial in America can run to millions of dollars, and these are non-refundable even if you win. The mere fact of saying, "I will go to trial," will almost certainly bankrupt 99% of people. It just will.

The other thing about it is that in many, many cases, particularly white-collar cases, what the US Government does is charge a conspiracy. They will then find one of the co-defendants and say, "If you plead guilty and co-operate against the others, we will give you no prison time or days in prison." That happened in Houston, where we were about to be extradited to, in the case of Jamie Olis. There were three defendants who were all charged on the same sheet with the same offence, and two of them agreed, on the advice of their counsel, to enter into plea and co-operation agreements. One of them was sentenced to 30 days, and the other was sentenced to 12 months. They both gave evidence against Mr Olis, who said, "No. I did not do any of this." He was sentenced to 24 years in prison. When you look at that, you see that all three of them were charged originally with the same thing.

Q213 Chair: Let us look at the issue of probable cause and reasonable suspicion. You have followed the proceedings in the House and the various debates that we have had recently and, indeed, at the time of the first concerns that were raised by Mr Cameron, when he was the Leader of the Opposition, and Mr Clegg. We have centred on the words "probable cause" versus "reasonable suspicion" with a view to saying that these were actually different words and that they meant different things. You do not accept that. You think that this is a bit of a red herring.

David Bermingham: Two different questions there. Actually, I do think they mean different things, but I do rather take the point that Sir Scott Baker made in his evidence to this Committee that, in a sense, it is semantics. Maybe the difference is not that great, and maybe, as he said, "You couldn’t put a sheet of tissue paper" between it. That is not the point. The point, very simply, is that if you are a UK citizen or somebody who is ordinarily resident in the UK and you are wanted for extradition by the United States of America, you have no right to see or challenge any evidence in a hearing here in the UK as part of the extradition proceedings.

By contrast, if you are a United States citizen who is wanted for extradition by the United Kingdom, there is a probable cause hearing in America, where evidence is discussed and you can put forward your own arguments as to why that evidence does not exist, for instance. That is the critical thing. It is not a question of relative standards; it is a question of-

Q214 Chair: Process.

David Bermingham: Exactly that.

Q215 Chair: What you are pointing the Committee to is the process. The process is different. The words may well mean roughly the same thing, but the process is different. There is always a hearing.

David Bermingham: In America, there is a hearing. Here, there is no hearing on evidence.

Chair: That is very clear.

Q216 Michael Ellis: Mr Bermingham, you suggest that you were effectively pressured into pleading guilty. Is that your position?

David Bermingham: Yes.

Q217 Michael Ellis: You complain about the plea bargain system in the United States, but do you acknowledge that, although we may not call it the same thing, we have a similar system here in the English jurisdiction in that defendants will find themselves encouraged to plead guilty if there is sufficient evidence against them to justify that plea and they can and very usually do receive anything up to a third off their sentences when or if they do plead guilty? Do you also accept that there are good public policy reasons why such a provision should apply, both here and in the United States? For example, not having a trial costs the public purse a lot less money, it inconveniences witnesses and juries far less, and there are good public policy reasons why encouragement should be made to plead guilty where there is sufficient evidence for a person to do so.

David Bermingham: I agree with all those things.

Q218 Michael Ellis: You agree with all of that. You had legal representation in the United States and here in the United Kingdom, did you not?

David Bermingham: Yes.

Q219 Michael Ellis: And high-quality legal representation.

David Bermingham: I would like to think so, yes.

Q220 Michael Ellis: You took an oath as to the plea bargain agreement that you entered into in the United States that you accepted that agreement.

David Bermingham: Yes.

Q221 Michael Ellis: And you swore that oath in court.

David Bermingham: Yes.

Q222 Michael Ellis: So you are now saying that, despite your legal representation and despite acknowledging that there are public policy reasons in the way that you already have, you do not like the result of what happened.

David Bermingham: No. That is not what I am saying at all. I am perfectly content with what we did. In the circumstances, it was perfectly rational-like a business decision, if you wish.

There are two issues here. One is specific to our case, and of course I am going to be entirely self-serving in my evidence on that. But let me first of all deal with the more general point, which is the difference between the two systems. There has long been plea bargaining in the US, as there has been in the UK. I have no public policy issue with either of those. You are absolutely correct in everything you say. There is a difference, and that is the practical implementation.

I have a genuine concern that we are travelling blindly down the road towards the Americanisation of our criminal justice system on the issue of plea bargaining. That, of course, was championed by Baroness Scotland two years ago and is now coming into law here. Believe me, it is the thin end of the wedge.

Michael Ellis: Well, forgive me-

David Bermingham: If I may? I’m sorry. The difference, in practical terms, between the two is exactly as you said. It is that here the judge has total discretion over the sentence that he will give and, moreover, it is never going to be more than a third off what would otherwise have been the tariff. The problem in America is that the confluence of circumstances that are facing a defendant are far more than just the sentence, but the disproportionality in sentencing-going back to the Jamie Olis example-is a huge one: 24 years versus 30 days.

Q223 Michael Ellis: There are differences, are there not, between sentences that are passed in the United Kingdom with individuals who turn Queen’s evidence or co-operate with the police? There are comparable cases, and I am sure there are in other jurisdictions around the western world.

David Bermingham: I am sure there are.

Q224 Michael Ellis: There are very good policy reasons why that should take place, but you admitted to fraud counts, did you not?

David Bermingham: We admitted to failing to inform our employer of the opportunity to make an investment, yes.

Q225 Michael Ellis: Did you also agree to repay large sums to what is now the Royal Bank of Scotland?

David Bermingham: Yes.

Q226 Michael Ellis: Were those sums in total something in the region, for the three of you, of $21 million?

David Bermingham: No.

Q227 Michael Ellis: How much were they?

David Bermingham: $7.3 million.

Q228 Michael Ellis: Each?

David Bermingham: No, in aggregate.

Q229 Michael Ellis: Was that money repaid?

David Bermingham: I am not at liberty to say, other than to say that we have entered into an agreement with the Royal Bank of Scotland, and I am sure you could talk to their lawyers about that.

Michael Ellis: But I am just asking you: have you repaid-

Q230 Chair: Sorry, Mr Bermingham, I think this is a direct question. Since you have come to give evidence, if Mr Ellis says, "Has it been repaid?" I think we should have a yes or no answer. I do not think it is not right to refer Mr Ellis to somebody else, when you have agreed to give evidence. Unless you are bound by some kind of confidentiality-

David Bermingham: Sir, I am.

Q231 Chair: If it is a public announcement, that is fine. If you are bound by a written confidentiality agreement, then you must say so.

David Bermingham: I have entered into an agreement with the Royal Bank of Scotland, as have my co-defendants, which is the subject of confidentiality on both sides.

Q232 Michael Ellis: Well, you agreed to come to this place to give evidence to this Committee. You do accept that you agreed to repay millions of dollars?

David Bermingham: Yes, sir.

Q233 Michael Ellis: But you are not willing to say whether you have repaid that sum?

David Bermingham: I would be perfectly willing, but I am subject to a confidentiality clause that prohibits me from doing so.

Q234 Chair: I have taken advice from the Clerk, and if you wish to tell us, you can tell us. When you are giving evidence to Parliament, which is what you are doing today, you are covered by privilege. Your evidence is covered by privilege, and if you wish to tell us, you can do so.

David Bermingham: I would love to tell you, Chairman. I am just not sure what might be the consequences. Unfortunately, it is a bit like Pandora’s box, given that the chances are that this will-well, this will-be a public record.

Q235 Chair: I think that we will accept that answer, and if we wish to pursue it we will write to the Royal Bank of Scotland.

David Bermingham: Please do. I would be more than happy, if the Committee wishes and could give me some undertakings as to secrecy, to give that information to the Committee, if it were not made public.

Chair: I think we want to move on in your questioning, unless Mr Ellis-

Q236 Michael Ellis: I am not going to pursue that any further. I just want to ask you this: Andrew Fastow, whom I think you have already mentioned, who was an Enron employee, was chief witness against you.

David Bermingham: No, he was not.

Q237 Michael Ellis: He was a witness against you?

David Bermingham: No, he was not.

Q238 Michael Ellis: He was not a witness against you at all?

David Bermingham: No, he was not.

Q239 Michael Ellis: Do you accept that some conduct and all the evidence against you was in the United States?

David Bermingham: No.

Q240 Michael Ellis: You do not suggest that there was any evidence against you that was in the United States?

Chair: Mr Ellis, I understand what you are trying to do, but if we could bring this to a close, because we are actually concerned with the treaty. If you could make it relevant to the treaty, that would be very helpful.

Q241 Michael Ellis: I am coming to that. Evidence and conduct committed in the United States can be prosecuted in the United States; do you accept that?

David Bermingham: Yes, 100%.

Q242 Michael Ellis: Your case was connected, was it not, to Enron?

David Bermingham: Minorly, yes, it was.

Q243 Michael Ellis: So that was an American jurisdiction case.

David Bermingham: No, it was very much a UK jurisdiction case. We were accused of robbing our bank in London.

Chair: Can we move on from the specific, and what you did or did not do, to the treaty itself?

Q244 Alun Michael: You said a few moments ago that the process was, in your view, at fault, and I just want to be clear. Some people have argued that the UK should revert to the requirement to produce prima facie evidence to back extradition requests, but do I understand you correctly that the standard or level of evidence is not the main issue, as far as you are concerned?

David Bermingham: It is certainly not the main issue, no. My main issue is the lack of any evidence. There are two questions: one is do we require somebody to produce evidence? If the answer to that is yes, the subsidiary question is what is the level of that evidence? I am less concerned by that.

Q245 Alun Michael: Is your argument an absolute one, or is it primarily that it ought to be the same in both directions?

David Bermingham: Reciprocity is a cornerstone of our international relations. Sometimes, absolute reciprocity is not possible. For instance, in the US, the fourth amendment to the US constitution demands probable cause. We are stuck with that. It may or may not be the same as, higher or lower than prima facie. I think over here, we would be stuck with prima facie-I am not sure, but I think the point is that on a practical level, if one country asks for evidence, the other should as well. It is as simple as that, and no more difficult.

Q246 Mr Winnick: We are concerned with the treaty, as the Chair has explained, but Mr Bermingham, you are not putting yourself forward today as some innocent martyr, are you?

David Bermingham: No, sir. No, on the contrary. No. I am pleading guilty.

Q247 Mr Winnick: Would it not be right to say-before I come to the treaty, Chair-that if there is to be sympathy, it should be first and foremost for the victims of the Enron affair or scandal-the ugliest face, as I describe it, of capitalism?

David Bermingham: I could not agree more. I have consistently said, and I am on the record over many years as saying, that we were probably the least sympathetic characters you could ever possibly have imagined in the circumstances, and I am not moving away from that position. My mission here today is to talk in general terms about my observations on extradition, and preferably not to talk about our own case.

Q248 Mr Winnick: Fair enough. As far as the position over the treaty is concerned, can you explain why, in your particular case, there was sufficient evidence in the USA presumably to prosecute you, but the evidence you required was actually in the UK?

David Bermingham: Yes. In fact, in answering this question, I will hopefully answer the question that Mr Ellis was endeavouring to make, which is that actually, in our case, 95% of the so-called evidence against us was actually materials that we had gone forward with to the Financial Services Authority in London and provided, before there was any criminal investigation into Enron, ourselves. There are striking parallels here, in a sense, with the case of Babar Ahmad; all the evidence that was used to prosecute us, in the same way as Mr Ahmad faces to prosecute him, was actually here in the UK and was passed to the United States Government by the UK authorities.

Q249 Mr Winnick: You made an agreement with the prosecution authorities, as we know, in the United States, but if the matter had come before a judge and jury, would it not have been the defence of your lawyers, acting on your instructions, that since the evidence required was not available in the United States, you would not have been given the opportunity to have a fair trial, which, of course, is guaranteed by the constitution of the US?

David Bermingham: In a sense, we made that point through the filings. Ultimately, one of the reasons why we entered into a plea agreement was that we always said, prior to being extradited, "Look, if you send us to Texas, all of the stuff that we need to defend this-all the written materials and witnesses we will need to defend this-are here in London." Because there were no proceedings against us in London, in England, we had no rights of subpoena over any of those before we were extradited. Once we were extradited, we filed numerous motions-they are all public record-saying, "These are the documents that we need and these are the witnesses that we need," but because we were in the United States we had no ability to get any of those. Ultimately, the fact that we had no ability to produce our own defence, other than by taking the stand ourselves-no witnesses, no written materials-was certainly a contributory factor to us entering into a plea bargain.

Q250 Dr Huppert: It is a pleasure to be able to continue our conversation with you from the Joint Committee on Human Rights, of which I used to be a member. I will not go through every point. I assume that you stand by what you said, so we do not have to go over it all again.

David Bermingham: Every word.

Q251 Dr Huppert: Following on from the specific cases raised by Mr Winnick about access to papers-you highlighted for the Joint Committee on Human Rights the inability to defend yourself from within jail, or how hard it was-do you think there should be specific provision within the extradition treaty to guarantee subpoena powers and access to witnesses and evidence? Is there some way in which that could be structured or, alternatively, should the treaty say that, if one cannot guarantee that such papers and witnesses will be available, that would be a bar to extradition?

David Bermingham: That is a fascinating question. I am not sure, practically, whether that is achievable, other than perhaps through a forum amendment, because you would actually deal with that in assessing whether or not somebody could more reasonably or properly be tried in the UK. I don’t think you would be able to put into a bilateral treaty something that might require a whole change to a country’s domestic legal system. It is a fascinating question, though.

Q252 Dr Huppert: So you think the simplest way would be to actually enact the forum amendment.

David Bermingham: For sure.

Q253 Dr Huppert: They are simply not being commenced.

David Bermingham: The forum amendment deals with a lot of the issues that are problematic in extradition cases at the moment, I believe.

Q254 Dr Huppert: What is your response to those who object to the forum amendment? Why do you think it has not been commenced, having been put in by Parliament?

David Bermingham: I know jolly well why it was not commenced under the previous Government-it is because, when they put it on the statute book, they said they were not going to commence it, and it was just a constitutional fudge. Why it has not been enacted by this Government, I cannot speculate, to be honest. What I would say is that it is the wrong forum test. The amendments that were originally proposed back in 2006 by the Conservatives and the Liberal Democrats actually had a presumption against extradition where a trial could be held in the UK.

Q255 Chair: And you helped draft those amendments.

David Bermingham: Yes, I did, personally. The principle behind that was very simply that, in my view, extradition has such catastrophic consequences, not only on the individual but on their family, friends and everything else, that, as a civilised democracy, we should be saying, yes, extradition is a very important part of international co-operation and crime but, none the less, it should be somewhere akin to a last resort rather than a first resort. If you put in a forum clause, that actually has a presumption against extradition if you can trial a case here. That is not saying that everybody will be barred under the forum; it is just saying that the judge will start off with the presumption of a UK case. That presumption can, of course, be overturned by the state seeking extradition saying, "No, here are the reasons why it makes sense for the trial to be held abroad."

Q256 Nicola Blackwood: I did not quite understand. Why is it the wrong forum test? How do you think that should be amended?

David Bermingham: There are many lawyers around the table here, and to a certain extent one might regard this as semantics, but it is not. The forum amendment that was put in place by John Reid was very specifically drafted and was changed from what had been proposed by the Conservatives and the Liberal Democrats. If you read the current wording of the forum amendment-section 19 and 87B, I think-the presumption is in favour of extradition. In other words, it is for the defendant to say why he mustn’t be extradited, whereas the original clause that was drafted put the onus on the requesting state to say why he should be extradited. The significance of that is that it is the requesting state that wants to try this person-that’s why it brought the extradition proceedings. I do not think it is unreasonable for it to say, as part of that process, why he should be shipped off to a foreign land, with all that that entails, rather than the alternative of a trial here.

Q257 Nicola Blackwood: You have given us a number of written submissions about your views on the Baker review. What is your view in particular on the solution to the forum issue put forward by the Baker review, namely that, rather than enacting a forum amendment-the one that is written, or an amended version-there should instead be formal public guidance for prosecutors on whether or not to prosecute cross-border crimes in the UK or elsewhere? Do you think that this will solve the problem?

David Bermingham: No, I don’t. I don’t think it will come close to solving the problem.

Q258 Nicola Blackwood: Can you give us the specific reasons why not?

David Bermingham: Yes, very simply because such guidelines, in one form or another, already exist. The Eurojust guidelines are in operation substantially for all the European Union countries, and have been there since 2003. Largely as a consequence of our case, the US guidelines, which were put in place by Lord Goldsmith when he was the Attorney-General, deal with cases for the United States. Those guidelines have been around now for many years. The problem with them is that there is no transparency, on the one hand, in the decision-making process, and there is also no judicial oversight. In other words, a defendant has no part in these proceedings. The defendant can at no stage during these proceedings make any representations of his own on the issue of forum, nor can he effectively challenge-other than through trying to get judicial review-a decision of these prosecutors. That has to be wholly wrong. The one observation that I would make is that the framework decision itself specifically contemplates the fact that many of the European Union countries operate a forum test as part of their extradition proceedings. The suggestion that judges are incompetent to decide forum, or that they are not the best the people, is wholly wrong.

Q259 Nicola Blackwood: Do the guidelines at the moment take into account the need for defendants to access evidence in their own country?

David Bermingham: On paper, to a certain extent, yes-but not in practice.

One of the issues that I have with the Scott Baker review is that it is a fantastic, dry piece of legal analysis, but it totally lacks the humanity associated with practice. It is not a question of what the guidelines actually say, it is a question of what in practice people do. The biggest problem with the guidelines as they stand, and I cannot see how you can put more transparency into the process, is that there is no judicial oversight. There is no ability for the defendant either to have a part in that process of decision making or to take issue with it in a legal proceeding. He cannot do it.

Q260 Nicola Blackwood: Your view is that there is no way in which these guidelines could be enforced without judicial oversight.

David Bermingham: Correct.

Q261 Steve McCabe: The object of the forum arrangements that you helped draft is to prevent extradition in the majority of cases and, indeed, to prevent some cases coming to trial at all.

David Bermingham: No, sir, that is wholly wrong.

Q262 Steve McCabe: The presumption is to be against extradition, but the arrangements are not designed to prevent extradition in the majority of cases.

David Bermingham: No. Forgive me if I am miscommunicating.

Q263 Steve McCabe: I am reading what you said on 14 December. That is why I am looking a bit lost. You said then: "In all probability only those cases when 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 after all." Therefore, as I said, the object of your intention is to prevent extradition in the majority of cases and, in some cases, to prevent them being brought at all. That is what you say, isn’t it?

David Bermingham: Let me expand on that by analogy. One of the reasons that we are all sitting in this room today is that since 2004, when the new Act came in, the volume of extradition cases has grown exponentially. One of the biggest issues faced-this is not to do with the US or in general terms, but much more on the EU side-is proportionality; is frivolous cases being brought, cases which really should not be brought, for a hundred different reasons. One of the things about putting in place a forum amendment, as I am proposing, is that actually in a lot of cases it would stop the foreign state bringing the case because it is frivolous, it should not be brought and the state is only bringing it at the moment because it can.

Q264 Steve McCabe: But does not the forum amendment apply only at the point where extradition is already considered appropriate?

David Bermingham: Yes, in the same way that any other-

Q265 Steve McCabe: Therefore, a case for extradition has already been made satisfactorily. You are implying that this is going to deal with a whole lot of trivial, frivolous cases. All I am asking is, is there not a danger here that international criminals are going to evade the law because you are going to introduce a proposal that will make extradition extremely difficult and, in some cases, will prevent prosecution in any jurisdiction? Is that not the risk in what you are advocating?

David Bermingham: That was very much the point made by Sir Scott Baker in his evidence before the Committee and, with respect, I disagree. The simple reason is this: the country that wishes to extradite somebody should make the case as to why extradition is preferable.

I will give you a good example. Let us say that it is the US. Let us say that the only evidence against the person is wiretap evidence. They would come to the UK, requesting extradition, and they would say that the reason that they need to have the case in the US is because the only evidence that they have against this man was obtained by wiretap. Therefore, under UK law, it would be inadmissible, and therefore the judge has to sit there and say, "Well, in this situation, if I use the forum bar to prevent the extradition, this chap will not be prosecuted." That will bear. The judge will have to take a decision as to whether or not he believes, in the circumstances that are facing him, it would be in the interests of justice to prevent the extradition and, as a consequence of that, for the case not to be tried. In that situation, most judges will say, "Well, this looks like a serious case. They have wiretap evidence. I have seen the evidence. He should be extradited. He needs to face trial." The judge can make that decision. There has to be a presumption one way or the other. All I am asking is that it should be incumbent on the requesting state to make the case as to why extradition is preferable. No more than that. I am not saying, "Let’s go around stopping everybody getting extradited."

Q266 Steve McCabe: Fine. So why did you say "or the case not be brought at all"? That sounds slightly more than what you have just said to this Committee.

David Bermingham: Because there are an awful lot of frivolous cases where there is no evidence.

Q267 Steve McCabe: Would you like to quantify that for me?

David Bermingham: For instance, Alex Stone-

Q268 Steve McCabe: That is one. You say that there is an awful lot. Give me an idea of what scale we are talking about here.

David Bermingham: I could not possibly, but you have taken evidence from a number of people-

Q269 Steve McCabe: It is just that you made the assertion that there are lots of frivolous cases. I just wanted the number.

David Bermingham: I have no idea.

Steve McCabe: You do not know. Thank you.

Q270 Chair: Much play has been made of the fact that the treaty is designed to take politics out of extradition, so that you do not leave it to the politicians to make a decision, but there still remains a great deal of politics in extradition. When you arrived in the United States, it was because the then Prime Minister and the then Attorney-General intervened to make sure that you went on bail rather than being held in custody. So there was intervention at the very highest levels. I have actually checked this out and apparently it is absolutely true that they did intervene.

Is it surprising that, even though everyone says that there is no politics in extradition and that it is all up to the judges, here we have Prime Ministers intervening? When Barack Obama came over to see Prime Minister Cameron, Prime Minister Cameron raised the Gary McKinnon case with him, and it was raised in the press conference.

David Bermingham: In a perfect world, there would be no politics in extradition. We do not live in a perfect world. I think there are extraordinary cases-Gary McKinnon is one such case-where simple legal argument is not sufficient. I think human nature is such that there will always be these cases, and, frankly, long should there be these cases. I said in my evidence to the Scott Baker committee that I would actually like to see the role of the Home Secretary in the extradition process reduced even further to keep politics out, but-

Q271 Chair: Even though that might have helped you? In your particular case, there were many Members of Parliament, including your own constituency MP and others, who were very concerned about it.

David Bermingham: It is difficult to say. I hesitate because there is obviously enormous self-interest here. I think we were dealt with unreasonably well, because of who we were and because of all the stink that we had kicked up. One of the problems that I have is that 99.9% of people who are caught up in extradition do not have the advantages that we had. They do not have all the publicity. They do not have the money and everything that we had.

Chair: Or the contacts.

David Bermingham: Or the contacts. We were not the victims. We were the lucky few.

Q272 Lorraine Fullbrook: Mr Bermingham, you have said that the prosecutors in your case said that if you agreed to plead guilty, they would support and expedite a transfer back home. Therefore, you agreed to the plea bargain and you served 37 months, rather than the expected 10 years if you had gone to trial. Why do you think, in principle, prisoners should not serve out the whole of their sentence in the territory in which they were convicted?

David Bermingham: I think it depends on a case by case basis. The issue here is obviously prisoner repatriation. One of the issues I have-particularly with the US, given the nature of the cases that we have seen over the last six years-is that many of the people that it requests for extradition have never set foot in America. Every case is different, but if you have a situation where somebody from country A goes to country B, commits a crime and then goes back to country A, that is the classic. That is what extradition is all about: take him back to country B, try him there and, if necessary, imprison him there.

However, Sir Scott Baker, in his own report, drew attention to the fact that in a civilised society it is actually a very good thing, if a citizen or somebody ordinarily resident in a country is tried and convicted somewhere else, he should be able, as part of the process of rehabilitation, to serve his sentence close to his family. The problem that we have with-I will come back to the US if I may, but there are a couple of very interesting cases out there at the moment. The Dewani case is one in particular. For instance, there is no prisoner transfer agreement with South Africa, so if Shrien Dewani were to be extradited to South Africa, tried for murder and found guilty, we would never get him back-it is as simple as that, notwithstanding the fact that he was born and grew up here in Britain and all his very extended family are here in Britain.

In America, the situation is different, because in America-it goes back to what I was saying to Mr Ellis earlier-the American prosecutors will use, and do use, the threat of serving your whole sentence in the US to encourage people to make plea bargains that they might not otherwise have made. It is a matter of record. I think Janis Sharp, Gary McKinnon’s mother, has testified before this Committee that he was told, in the US embassy here a number of years ago, that if he agreed to enter into a plea bargain they would ensure that he got back quickly. Now, if you are a foreigner who is being extradited and you are in a situation where they say, "Look, if you plead guilty, we will get you back quickly"-again, our plea bargain is a matter of public record, they wrote it into it; it was part of the deal that they not only would agree to it, they would expedite it-"on the other hand, you can go to trial, lose, and if you lose, we will ensure you never get back"-because they can.

One of the problems that I have with the Scott Baker report on prisoner repatriation is that it deals in abstract terms with the Repatriation Of Prisoners Act 1984 and with the convention on the transfer of sentenced persons. The practice of those mechanisms is actually quite complicated. The highlight issue is that in order to get back home, under the convention on the transfer of sentenced persons or the Repatriation of Prisoners Act, three different agencies have to agree: first, the country in which you are incarcerated; secondly, the country to which you wish to go back; and thirdly, you, the individual.

On the first of those, in the case of the US, the decision as to whether to allow a treaty transfer rests with an office in Washington, and it is completely unreviewable. They do not have to give any reasons why they have turned down, but they routinely turn down any request of anybody who has not already served half of their sentence-they just do. There is a British man, a former chief executive of a company called Refco, whose name is Phillip Bennett. He was sentenced in 2008. He entered into a plea bargain to fraud allegations, and was sentenced to 16 years in prison. He is British, his wife is British and his family is British. He recently applied for a treaty transfer home and was turned down. Having been turned down, he must wait a further two years before he can re-submit such a request.

My problem with Scott Baker’s view that we do not need to do anything about prisoner repatriation, to put anything into the law, is that unless we have a Government-to-Government agreement on these things-whether it is with all European Union countries, as envisioned by the framework decision, or on a bilateral basis with non-EU countries-this is going to be used to persuade people to enter into plea bargains that they would not otherwise do. It is just wrong, and we will never have any ability, having extradited somebody, to guarantee that they can come back.

Q273 Lorraine Fullbrook: Thank you. May I just go on to ask you a further question about the repatriation of prisoners? Is there any reason why prisoners who are extradited to stand trial should be treated differently from an overseas prisoner who is arrested in the territory where the offence took place?

David Bermingham: In principle, no. I think in practice that for an overseas person who is ordinarily resident in that country, the primary difference is that, depending on the nature of the offence and assuming that it is a non-violent offence, they will almost certainly be granted bail, which someone who is extradited will not. It is a matter of absolute practice that prosecutors in a foreign state will refuse to support an application for bail. It is up to the judge, obviously, whether someone gets bail.

One of the problems about people being extradited is that there is a 99% probability that they will end up being imprisoned in that foreign land pending a trial, whereas someone who is ordinarily resident there, even if they are a foreigner, might have a much better chance of getting bail.

Q274 Chair: You mentioned the Scott Baker review several times, obviously because that is why we are here. What is your concern about the way in which the review was conducted? I know that you asked to give oral evidence, as did other people involved, and they were told they could not do so. Do you think that was a problem?

David Bermingham: To be fair to Scott Baker, I did ask to give oral evidence. I was not told that I could not do so; I just was not called.

Q275 Chair: But none of the defendants seem to have been.

David Bermingham: I think it is unfortunate, not least in the context of the parliamentary inquiries that are going on, because both your Committee, Chairman, and the Joint Committee on Human Rights have taken evidence from many people, including the families of those who have been extradited. This goes back to my observation earlier, the Scott Baker review is a fantastic piece of dry legal analysis, but it is utterly lacking in humanity. I think the human aspect comes from talking to people who have lived through the various aspects of extradition, whether as a defendant or as the family of someone. It breaks up families; it destroys them. It is a terrible, terrible thing.

Q276 Chair: That could happen to other people involved in the criminal process. It is not unique to extradition cases. You talk about the fact that you were preparing your very complicated case in a very small cell in an American prison. It is access to lawyers, and access to papers, which were all in the United Kingdom-is that right?

David Bermingham: By virtue of the intervention of Tony Blair and Lord Goldsmith, we were not incarcerated. We had a better chance than most people.

Chair: Thank you for correcting me. It was not Gordon Brown, it was Tony Blair of course. Go on.

David Bermingham: Yes. Most people in that situation will be locked up in a 10 feet by 7 feet cell with someone who statistically will be a drug dealer or whatever. Trying to prepare any form of defence in a case that involves a lot of paper is close to impossible. Prison in America, whether on remand or after conviction, is not nice. On remand, it can be very unpleasant. Sir Allen Stanford, who ran the Stanford Financial Group, as you may recall, has been on remand in prison in Houston for three years pending trial. He has now been pretty much medically certified as unfit to stand trial because the beatings he took while in prison-this is all on the public record and documented-were so severe that he was hospitalised for a long time and had to have major surgery. His ability to prepare for a trial not only with all the physical issues, but the fact that his case probably involved twice the volume of this room in paperwork, is zero.

My attorney in Houston is representing another person involved in the Stanford financial case, and has told me that there is no possibility of that man ever being able to defend his case.

Q277 Chair: But as you say, you are one of the 1%; there are 99% who do not have the kind of contacts, or the mood there was in Parliament at the time.

David Bermingham: Yes, we were lucky.

Q278 Chair: But going down to basics again, the real difference you see is the process not the wording, and the fact that there is a hearing for probable cause, and there is not one for reasonable suspicion in this country. Testing of the evidence. Very briefly.

David Bermingham: There are very stark examples either side of the line. In Lotfi Raissi on one hand, which was a pre-2003 Act case, there was no evidence, so when it came to the extradition hearing and the US was required to produce the evidence that supported extradition, there wasn’t any, so he was discharged. On the other side of the line, Alex Stone, a blind man, was shipped off to Missouri when there was clearly no evidence. There was suspicion, but no evidence. His life was ruined, and he was not even allowed to come back when it was discovered there was no evidence, having been locked up for six months, 23 hours a day, until such time as he agreed to plead guilty to leaving the country during the course of an investigation. He came back saddled with a criminal record. Sir Scott Baker said he could not find a case of injustice, but that was injustice. A man’s life was ruined by unjust extradition.

Q279 Chair: Finally, going back to the time when you helped both the Conservatives and the Liberal Democrats put forward their amendments, in your view, has anything changed since then as far as the treaty is concerned, or the views you held then with the then leader of the Conservative party, and the then leader of the Liberal Democrat party? Do you think it is still the same? The Act is still there.

David Bermingham: I think it is exactly the same. We made the point a long time ago that if we went, the floodgates would open. I am very sorry to say that I think we have been proved right.

Chair: Mr Bermingham, thank you very much for giving evidence today. If we have further questions for you, we will write to you.

Prepared 12th January 2012