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Last Updated: Friday, 30 November 2007, 08:07 GMT
Case highlights UK-US legal divide
By Jon Silverman
Professor of Media and Criminal Justice

(L-R) Giles Darby, David Bermingham and Gary Mulgrew
The three admitted conspiring with ex-Enron staff to defraud NatWest

The outcome of the so-called NatWest Three case points up the dramatic difference between the prosecution of alleged fraud in the US and in the UK.

The men each pleaded guilty to one charge of wire fraud.

If the judge approves the plea bargain conducted between prosecution and defence, they are expected to face 37 months in prison.

They had each been charged with seven counts and if found guilty on all of them, could have been looking at sentences of up to 35 years.

And it this disparity which worries some legal experts.

Sally Ireland, senior legal officer of the organisation, Justice, said: "You have to wonder about the degree of pressure put on defendants to change their plea when the incentive is such a huge reduction in sentence.

"That can catch the innocent in the net as well as the guilty."

Setting the sentence

There is little doubt that formalised plea bargaining and the use of insider or employee witnesses explains why so many more US fraud trials are successful than in the UK.

About 95% of cases are resolved in this way.

In the UK, informal discussions have taken place between prosecution and defence in some criminal cases for many years.

Under the Serious Organised Crime and Police Act, 2005, the system by which a defendant can enter a guilty plea and offer Queen's Evidence in return for a discounted sentence was, for the first time, placed on a statutory footing.

But it is the judge, rather than the prosecution, who sets the sentence.

In 2006, a Whitehall review set up to examine the prosecution of fraud trials, recommended that those facing fraud allegations should be able to reach a deal with prosecutors even before charges are brought.

There will be intense interest in the outcome of their fight
Jon Silverman

This would depend on defendants having a degree of certainty about the sentence they would face.

The director of the Serious Fraud Office, Robert Wardle, supports such a move, as well as tougher sentences for fraud.

The case of the NatWest Three was notable for the storm of protest over the 2003 Extradition Act which, critics said, made it far easier for the US to extradite a suspect from Britain than the other way round.

At the time the men were sent to Texas to face trial, the US Congress had not even ratified the treaty. Under pressure from the UK government, it has since done so.

But concerns remain that US prosecutors and courts are pursuing an expansionist strategy which will see more foreign-based suspects falling into the clutches of the US judicial process.

A British computer hacker, Gary McKinnon, and a British financier, Ian Norris, are both resisting extradition requests through the courts here.

There will be intense interest in the outcome of their fight.

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