Extradition from Britain—NatWest Trio Continued

On Monday we noted that the so-called “NatWest Trio” were launching the second prong of their battle against being extradited to the United States. The hearing is now over, and it seems to have gone quite well, with one of the judges hearing the case, Lord Justice Laws, saying that he does not “really understand why [the US government is] applying to prosecute these people if, hand on heart, the case is that the loser was NatWest bank, not Enron.”^[1] The only real answer the US government had in response, according to the International Herald Tribune, is that the three men allegedly committed part of the fraud in the United States, during a meeting with Enron executives in Houston in 2000.^[2] The other jurisdictional hook the US government offered was the allegation that emails were sent between the two countries.^[3]

Physical presence in the US is certainly a way to get personal jurisdiction over a defendant, but email traffic is a somewhat novel approach which has been used in recent years, and it has been quite controversial in other countries. For example, in early September, we discussed Raymond Griffiths who is wanted in the United States for copyright violations, but he is not alleged to have committed an act within the territory of the US. At issue in that case were the terms of Article 1, paragraph 4 of the protocol to the extradition treaty between the United States and Australia. This clause states that if an offense occurs outside the territory of the requesting states, extradition will be granted if the laws of the requested state provide for the punishment of an offense committed outside its own territory in similar ways.^[4]

Returning to the NatWest Trio, Lord Justice Laws wanted to make it clear at the hearing that his concerns were not based on jurisdictional or technical issues, but rather were based on problems regarding the overall case.^[5] He said that it was hard to understand why so much effort was being put into extraditing the three men, and that he was “very troubled as to where those matters lead to.”^[6] Justice Ouseley, also hearing the appeal, said that extradition serves a public-interest purpose by preventing suspects from fleeing: “The public interest must be diminished surely if the trial can take place in the … (home) state.”^[7]

A decision on the hearing is expected soon.

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[1] U.K. Judges are “Troubled” by Enron Extradition Bid, Intl. Herald Tribune, Nov. 30, 2005, available here.
[2] Id.
[3] Id.
[4] Protocol Amending the 1974 Treaty, Sept. 4. 1990. U.S.-Austl., art. 1, para. 4, S. Treaty Doc. No. 102-23 (1992).
[5] Jane Merriman, Judge Questions Move to Extradite UK Bankers, Reuters, Nov. 30, 2005, available here.
[6] Id.
[7] Id.