This month, November 2010, sees the third anniversary of the sentencing (to 37 months in gaol) of three former NatWest Bank employees – British citizens – on one count of wire fraud, an offence unkown to British law.  They began their sentence in a US gaol in May 2008 and were transferred to a British prison in November 2008.

The offence for which they have been imprisoned was alleged to have been carried out in Britain, where the three were then living.  Unfortunately for them, one of the people involved was an Enron employee and the US authorities have been determined to prosecute everyone with any connection to anyone involved in that affair.

The details of the case are well-known.  Suffice it to say two things at this stage.  One is that the extradition from Britain was allowed under the UK-US Extradition Act 2003, an Act which has continually been widely criticised as one-sided – in favour of the US of course – in that a much lower standard of evidence is required for a US application in the UK than for the reverse.  Numerical evidence for this is that while only 10% of US applications have been refused by UK courts, 30% of UK applications have been refused by US courts (Home Office Note SN/HS/4980 by Sally Broadbridge).

The second remarkable fact which has even wider implications, including for example the workings of the European Arrest Warrant (see post of 7 November) is this: the UK High Court dismissed the ex-Bankers’ appeals and their claims to judicial review (which could have opened the way to an appeal to the European Court of Human Rights) with the following words delivered by Lord Justice Laws!, “Under the 2003 Act neither court nor minister possesses any discretion to (either) further the extradition process or (choose) not to do so.  If certain conditions are fulfilled, the court must send the case to the Secretary of State (for the Home Department).  If certain further conditions are satisfied the Secretary of State must order extradition, if not he must not”.

This view of the limits on the Home Secretary’s powers were explicitly affirmed in these very words by the then Home Secretary, Alan Johnson, on 15 July 2009 in the case of Gary McKinnon, the 23 year old computer buff whom the US authorities allege did grave damage by “hacking” into US defence networks.  (Many people would have judged McKinnon deserving of a medal for showing how vulnerable the US systems were to an enemy, which McKinnon manifestly is not, though he has clearly hurt the US defence establishment’s pride.)

Now here is the key point.  Babar Ahmed and Abu Hamza have been held by the British authorities since 2004.  Abu Hamza has been held first because of an application for extradition to the US under the 2003 Act (application granted on 15 November 2007), and secondly because he is currently coming to the end of a 7 year sentence for incitement and other offences.  Barbar Ahmed was detained in August 2004 pursuant to an extradition request from the US under the 2003 Act for alleged offences committed in the 1990s.  Extradition was granted by Judge Timothy Waterman at Bow Street Magistrates Court in 2007.  Meantime, following an appeal to it, the European Court of Human Rights has instructed the UK Government not to allow his extradition pending further, unspecified investigations.  Abu Hamza also has an appeal to the ECHR against his extradition, which leaves the government wondering what to do when he comes out in a few months’ time.

So in the cases of the NatWest three, Messrs Darby, Bermingham and Mulgrew, and the computer hacker, Gary McKinnon, the Courts and the Home Secretary have been bound absolutely by the 2003 Act to allow extradition provided the paperwork is in order – no actual evidence of the alleged crime has been needed.  But in the cases of Abu Hamza, an Egyptian who entered Britain on a student visa in 1979, and Barbar Ahmed, born in London of Pakistani parents, both wanted in the USA on terrorism charges, apparently the 2003 Act is not so absolute after all.

So which is superior then, the US or the Euro Court?  If the ECHR does have the last word, the message to those arrested under the 2003 UK-USA Extradition Act is get your appeal in to the ECHR as soon as possible.  Either way, it makes all talk of the UK having a “Supreme Court” look pretty silly – a terrible indictment of the political class, who have let this terrible state of affairs come about.

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