THREE City bankers facing extradition to the United States for alleged involvement in the Enron scandal were yesterday given permission by the High Court to challenge their treatment by the Serious Fraud Office.
David Bermingham, Gary Mulgrew and Giles Darby will launch a judicial review of a decision by the SFO not to prosecute them in Britain. Mr Mulgrew is the son of Trish Godman MSP, the deputy presiding officer of the Scottish Parliament.
If they are not charged here, the three face automatic extradition to the United States under the terms of the Extradition Act of 2003.
Mr Bermingham said: "This is the first time the legal profession has properly grappled with the inherent flaws in the Extradition Act and the clear dangers that it presents to UK citizens.
"The dangers arise when extradition is demanded without evidence and where prosecuting authorities here are seeking to avoid any responsibility to determine whether it would be appropriate for the allegations to be investigated here."
He said the implications of their action "would be huge".
Lord Justice Laws, giving the ruling of the court, said the case raised "novel" issues about the proper forum for the trial.
He said that under the Extradition Act, the Home Secretary had no discretion but must order extradition if conditions laid down in the act were fulfilled.
Alun Jones, QC, for the three, had argued that they were employed by Greenwich NatWest in London and the alleged offences involved UK citizens against a UK company. There were no allegations that the three had caused losses to Enron.
He said the natural forum for any trial would be the UK and any extradition would violate his clients’ human rights.
The three men say they are innocent and have raised concerns that they may be denied a fair trial in the US. Charles Clarke, the Home Secretary, has until the end of May to decide whether to agree to the request from the US to extradite them.
The men formerly worked for Greenwich NatWest, the capital markets division of National Westminster Bank.
They are accused of conspiring with two senior Enron officials, Michael Kopper and Andrew Fastow, to defraud Greenwich NatWest by secretly investing in an "off-balance sheet" Enron partnership.