British executives face the unintended consequences of UK's Extradition Act

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The Independent Online

The UK's Extradition Act of January 2004 was designed to speed up the extradition of suspected terrorists, but has had the unwelcome effect of making the US a scarier place to do business for UK executives.

Several British businessmen have already fallen foul of the legislation, which is expected to lead to a flood of extraditions to the US.

Ian Norris, the former chief executive of Morgan Crucible, and three former NatWest bankers are currently vigorously fighting their extradition to the United States in separate cases. Nigel Potter, the former chief executive of gambling group Wembley, has recently been sentenced to three years in a US federal jail for conspiring to bribe a US official.

Under the extradition laws, US authorities are not required to present a prima facie case, meaning that it takes very little for them to make an extradition request, while UK authorities must do so when seeking extraditions from the US, because the US never ratified the extradition treaty.

The legislation leaves UK executives vulnerable to a crackdown on white-collar crime in the United States in the wake of the Enron collapse.

One of the biggest victims so far is Mr Potter, who entered the US voluntarily, before the Extradition Act came into force, because he wanted to clear his name and after advice from his lawyers that he would otherwise be seen as hostile to the US justice system.

Following his conviction and sentencing, the 59-year-old, who is married with two children, has been denied bail pending appeal and is now held at Allenwood, a federal prison in Pennsylvania.

His lawyers have lodged an appeal. Mr Potter is faced with the tough choice of sitting out the appeal process, which could take between six and nine months, in his US jail or forgoing his appeal and instead applying to serve his sentence in the UK, closer to his family and friends.

Alistair Graham, a commercial litigation partner at the law firm White & Case, said: "Nigel Potter's plight illustrates the extraordinarily heightened risk at which UK executives have been placed by the new US/UK extradition regime."

He added: "Contesting any request automatically means the defendant is classified as a fugitive from justice, leading to harsher treatment in the US judicial system if extradition occurs. But co-operating with the US authorities places UK executives at the mercy of an extremely harsh judicial climate. It's an extremely unbalanced situation and one that any UK government, if serious about ensuring fair treatment for its business community, should be looking to remedy as soon as possible."

Mr Graham acts on behalf of Mr Norris, who is fighting his extradition to the US on price-fixing charges, with a hearing due in early January.

He has also applied for a judicial review of the Home Secretary's decision to give the US the benefits of the new speeded-up extradition procedure even though the US refuses to reciprocate.

Business friends of Mr Potter have launched a campaign on his behalf, arguing that his case is a travesty of justice. They have written to Tony Blair, Jack Straw, the foreign secretary, and Sir David Manning, the British ambassador in Washington, to ask them to intervene in the case.

A website is also being set up where people can register their support for Mr Potter, which will go live in the next couple of days (www.justice4nigelpotter.com).

Among Mr Potter's friends is Roger Matthews, a former finance director of J Sainsbury and Compass Group and now the chairman of Land of Leather and Sainsbury Bank.

He said yesterday: "It's a gross injustice. Nigel was so convinced he was innocent that he decided to go to the US and didn't even fight extradition." He added: "It is very concerning for businessmen doing business in the US that there's a sentiment against white-collar workers in the US which is making it very difficult for them to get a fair hearing."

Other supporters include Sir Francis Mackay, the chairman of Compass and Kingfisher, Mary Francis, the former director general of the Association of British Insurers, Michael Peters, the chairman of Identica, Paul Baines, the managing director of Hawkpoint and Maureen Smith, head of the public relations company, The Communications Group.

The General Counsel 100 Group, which represents company secretaries and legal directors from FTSE 100 businesses, is also lobbying on Mr Potter's behalf. His local Conservative MP, Adam Afriyie, has asked written questions in the House of Commons about his case, and why the UK-US extradition arrangements are not reciprocal. Answers are due by 15 December.

The US judge's recommendation that Mr Potter, who has also been fined $75,000, go to an open-style 'camp' prison was overruled by the Federal Prison Service because he is considered an 'alien.' Instead he was sent to a full prison at Allenwood, while his co-defendant, a US citizen, is in an open-style prison.

The details of Mr Potter's imprisonment make grim reading for other UK executives faced with extradition. When Mr Potter went into jail on 25 November, he was put in 'lockdown' (solitary confinement) for ten days, longer than is usual, meaning he could not communicate with the outside world and initially did not even have anything to read or write with.

His family and lawyers cannot phone him, and did not hear from him for 14 days until he was allowed to make telephone calls. His wife, who plans to visit him in January for the first time, says he also had to fight to keep his wedding ring. Mr Potter's lawyer, Leonard O'Brien of Mac Fadyen Gescheidt & O'Brien, is based in Rhode Island, where the trial was originally brought, five hours' travelling time from his jail.

The case against Mr Potter stemmed from allegations that he and Dan Bucci, the former head of Wembley's Lincoln Park gambling emporium in Rhode Island, tried to bribe John Harwood, a former Rhode Island House Speaker, through his law firm to get approval to install more gaming machines at Lincoln Park.

The defence argued that the proposed payments were never made and that they would have been legitimate because they were destined for Mr Harwood's partner in the law firm who had done legal work for Lincoln Park. The judge ruled that Mr Bucci was the instigator of the offences.

Meanwhile, a decision from the High Court in London on the extradition of the NatWest three - Gary Mulgrew, David Bermingham and Giles Darby - on Enron-related fraud charges is expected by 21 December. The High Court will also rule at the same time on whether the Serious Fraud Office should have investigated the charges in the UK. The case could then go to the House of Lords and after that to the European Court of Human Rights.

There is increasing awareness of the implications of the new extradition regime, with Lord Hodgson prompting a debate in the House of Lords this summer and the shadow attorney-general pushing for a debate in the Commons. The US extradition expert Douglas McNabb, who has testified on behalf of the NatWest three, has opened an office in the City in anticipation of a flood of extraditions.

Mr Matthews said: "This is going to be a big issue. The government has very little control over who gets extradited. We want to ensure that British businessmen are made aware of this." His wife, an accountant, added: "Every other European country will protect its citizens. The UK government doesn't, as far as Americans are concerned."

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