David Bermingham, one of 'The NatWest Three' faces a possible 35 years in a maximum security facility in Texas, while being charged with fraud in Britain.


It was 6.45am, on 28 June, 2002," says David Bermingham, asked to recall the moment his world fell in. "I was on my bed, giving my youngest son, who was three months old, a bottle, and my wife, Emma, was having a shower. The news was on, and I heard the announcer say three British bankers from NatWest were being charged in connection with the Enron scandal. He mentioned my name. That was the first I heard of it.

"It's an indescribable feeling," continues Mr Bermingham. "I just sat, looking at the television, thinking, 'Jesus Christ, what's happening here?'"

It is a question that he has doubtless asked himself since. Some time this week, he, Gary Mulgrew and Giles Darby, the two co-workers accused of fraud alongside him, will be obliged to report to a British airport.

On the aircraft, the NatWest Three, as they have become known, will be met by US Marshals, although as David Bermingham, 43, understands it, they won't be restrained unless they cause trouble. He doesn't know where the aircraft is going. It may be to Newark, New Jersey, in which case the three will be issued on arrival with boiler suits, have their hands cuffed and ankles chained, and be ordered aboard a vehicle belonging to the US Department of Correctional Services for the long drive to Houston, Texas, where the charges have been filed. Or they may be flown direct to Houston, in which case they'll be rigged out in the same chain-gang couture, and whisked to the Federal Detention Center, at the corner of Texas and San Jacinto Avenues.

Depending on how things work out after that, they may be guests of the Federal Bureau of Prisons for anything up to the following 35 years.

The NatWest Three have been charged by the US government with seven counts of fraud. The charges pertain to a transaction in which, it is alleged, the three conspired with Enron executives to persuade NatWest to sell assets for dramatically less than they were worth, arranged to buy back the undervalued assets themselves, sold them again for their true market value, and kept the difference. Or, to put it more crudely, the US Justice Department believes that the NatWest Three nicked $7.3m (£4.2m) from NatWest. Mr Bermingham calls this "a crock of shit".

However, the question of the guilt or innocence of the NatWest Three is not the reason that an extraordinary alliance of conservative and liberal opinion has mobilised behind them. It is safe to assume that if one thing unites a spectrum broad enough to embrace David Davis, Menzies Campbell, the Confederation of British Industry and Liberty, it's a belief that $7.3m is a lot of money, and anyone who steals it should be punished. What so affronts many people about the case of the Three, however, is the meekness with which Britain is handing them over, coupled with manifestly unfair quirks of the 2003 Extradition Act.

Bundled through Parliament after September 2001, the Act means that UK citizens can be extradited to the US without the provision of prima facie evidence, while US residents wanted by the UK cannot be flown in the other direction in the same circumstances. The US, in fact, is yet to ratify it. It has been suggested that Washington doesn't much fancy the fallout that would result from having to send back Irishmen with whom Scotland Yard would like a word.

Mr Bermingham is under few illusions about what awaits him. "I've looked it up, and it's pretty grim. It's a combination of the other inmates - Category A prisoners as it's a maximum security facility - and living conditions that are at best rudimentary."

The best-case scenario for him is that he and his co-defendants will be bailed to return to the UK, but he doesn't expect this. The fact that they fought the extradition so long means that the US regards them as likely to flee.

"So," he sighs, "I'll be locked in a maximum security facility until I'm pressured into pleading guilty before I go mad - and 98 per cent of prisoners in US federal prisons have pleaded guilty. Or I'll be bailed to await trial but living in Houston, 4,000 miles from my family, and unable to see them, or provide for them. Either way, I'm looking at legal bills of around $2m, which, by the way, you don't get back if you're found not guilty."

The crucial, and arguably outrageous peculiarity of the NatWest Three's case is that they are British citizens getting their collars felt by American hands for committing a crime against a British institution while on British soil. The sole complainant is the US Department of Justice, pulling on the case's tenuous link to Enron. NatWest, now owned by the Royal Bank of Scotland, has not pressed charges.

Nor have any charges been brought by any agency of British law enforcement, a state of affairs that at one point in their four-year nightmare prompted the three to attempt to take the Serious Fraud Office (SFO) to court for refusing to investigate the matter, which would have meant a trial in Britain: "We argued that as we were accused of nicking a fortune from a British bank, it must be in the public interest to investigate that. But we lost."

The Attorney General scotched any hope of a British trial on Friday. Lord Goldsmith saw "no basis" for the SFO to reconsider its decision to leave the matter to American authorities.

Asked whether he believes himself to be the victim of snowballing incompetence or something more sinister, he is unhesitating. "The dark hand of politics," he says.

The story that unfurls is complex, but in essence Mr Bermingham believes that the FBI wants to use the three to get at Enron defendants who are obstinately pleading their Fifth Amendment right not to incriminate themselves - a recourse not available to subjects of these islands, free of a written constitution.

He ascribes the UK government's refusal to intervene to fear of embarrassment, citing the 2002 case of Lotfi Raissi, a Londoner, and the first person charged with offences relating to 9/11. He was held for five months in Belmarsh prison while the US sought his extradition. At that time, under the old extradition regime, US authorities were obliged to present solid evidence. They came up with Lotfi Raissi's Algerian descent, and his pilot's licence.

"Funnily enough," says Mr Bermingham, "the judge thought those insufficient reasons to send him to certain death in America, and released him without charge. The problem for the Government is that since then they've signed this non-reciprocal treaty with a country they regard as a trustworthy legal partner. They can't afford for our case to be held here and found to be wrong. But if we're extradited, they think there's that 98 per cent chance we'll end up pleading guilty in the hope of being allowed to go home after a few years, so they can say the system works."

The Prime Minister's Office, says Bermingham, could step in and insist on this crime allegedly committed by Britons against Britons in Britain being tried in Britain, but he isn't optimistic.

And if a miraculous intervention from No 10 delivered him to a British court, and the acquittal he feels certain of? "I'd like to write a book," he says. "I'm not sure it'd sell very well, though: bookshops wouldn't know whether to put it on the fiction or non-fiction shelves."

Called to account: The financier and family man

Born: Teddington, 19 August 1962. Educated at St Benedict's, Ealing, and Bristol University.

1984: Commissioned into the Royal Artillery in 1984, serving in Germany, Northern Ireland and Canada with the Royal Artillery, before leaving the Army in 1989 with the rank of Captain.

1989: Worked for NatWest until 1993, ABN Amro from 1993 to 1998, Greenwich NatWest from 1998 to 2000, Royal Bank of Canada 2000 to 2001.

From 2001: Most recently, he has been a self-employed financial consultant.

Married for 11 years, he has three children: Jemima (eight), Freddie (seven) and Archie (four).

It was 6.45am, on 28 June, 2002," says David Bermingham, asked to recall the moment his world fell in. "I was on my bed, giving my youngest son, who was three months old, a bottle, and my wife, Emma, was having a shower. The news was on, and I heard the announcer say three British bankers from NatWest were being charged in connection with the Enron scandal. He mentioned my name. That was the first I heard of it.

"It's an indescribable feeling," continues Mr Bermingham. "I just sat, looking at the television, thinking, 'Jesus Christ, what's happening here?'"

It is a question that he has doubtless asked himself since. Some time this week, he, Gary Mulgrew and Giles Darby, the two co-workers accused of fraud alongside him, will be obliged to report to a British airport.

On the aircraft, the NatWest Three, as they have become known, will be met by US Marshals, although as David Bermingham, 43, understands it, they won't be restrained unless they cause trouble. He doesn't know where the aircraft is going. It may be to Newark, New Jersey, in which case the three will be issued on arrival with boiler suits, have their hands cuffed and ankles chained, and be ordered aboard a vehicle belonging to the US Department of Correctional Services for the long drive to Houston, Texas, where the charges have been filed. Or they may be flown direct to Houston, in which case they'll be rigged out in the same chain-gang couture, and whisked to the Federal Detention Center, at the corner of Texas and San Jacinto Avenues.

Depending on how things work out after that, they may be guests of the Federal Bureau of Prisons for anything up to the following 35 years.

The NatWest Three have been charged by the US government with seven counts of fraud. The charges pertain to a transaction in which, it is alleged, the three conspired with Enron executives to persuade NatWest to sell assets for dramatically less than they were worth, arranged to buy back the undervalued assets themselves, sold them again for their true market value, and kept the difference. Or, to put it more crudely, the US Justice Department believes that the NatWest Three nicked $7.3m (£4.2m) from NatWest. Mr Bermingham calls this "a crock of shit".

However, the question of the guilt or innocence of the NatWest Three is not the reason that an extraordinary alliance of conservative and liberal opinion has mobilised behind them. It is safe to assume that if one thing unites a spectrum broad enough to embrace David Davis, Menzies Campbell, the Confederation of British Industry and Liberty, it's a belief that $7.3m is a lot of money, and anyone who steals it should be punished. What so affronts many people about the case of the Three, however, is the meekness with which Britain is handing them over, coupled with manifestly unfair quirks of the 2003 Extradition Act.

Bundled through Parliament after September 2001, the Act means that UK citizens can be extradited to the US without the provision of prima facie evidence, while US residents wanted by the UK cannot be flown in the other direction in the same circumstances. The US, in fact, is yet to ratify it. It has been suggested that Washington doesn't much fancy the fallout that would result from having to send back Irishmen with whom Scotland Yard would like a word.

Mr Bermingham is under few illusions about what awaits him. "I've looked it up, and it's pretty grim. It's a combination of the other inmates - Category A prisoners as it's a maximum security facility - and living conditions that are at best rudimentary."

The best-case scenario for him is that he and his co-defendants will be bailed to return to the UK, but he doesn't expect this. The fact that they fought the extradition so long means that the US regards them as likely to flee.

"So," he sighs, "I'll be locked in a maximum security facility until I'm pressured into pleading guilty before I go mad - and 98 per cent of prisoners in US federal prisons have pleaded guilty. Or I'll be bailed to await trial but living in Houston, 4,000 miles from my family, and unable to see them, or provide for them. Either way, I'm looking at legal bills of around $2m, which, by the way, you don't get back if you're found not guilty."

The crucial, and arguably outrageous peculiarity of the NatWest Three's case is that they are British citizens getting their collars felt by American hands for committing a crime against a British institution while on British soil. The sole complainant is the US Department of Justice, pulling on the case's tenuous link to Enron. NatWest, now owned by the Royal Bank of Scotland, has not pressed charges.

Nor have any charges been brought by any agency of British law enforcement, a state of affairs that at one point in their four-year nightmare prompted the three to attempt to take the Serious Fraud Office (SFO) to court for refusing to investigate the matter, which would have meant a trial in Britain: "We argued that as we were accused of nicking a fortune from a British bank, it must be in the public interest to investigate that. But we lost."

The Attorney General scotched any hope of a British trial on Friday. Lord Goldsmith saw "no basis" for the SFO to reconsider its decision to leave the matter to American authorities.

Asked whether he believes himself to be the victim of snowballing incompetence or something more sinister, he is unhesitating. "The dark hand of politics," he says.

The story that unfurls is complex, but in essence Mr Bermingham believes that the FBI wants to use the three to get at Enron defendants who are obstinately pleading their Fifth Amendment right not to incriminate themselves - a recourse not available to subjects of these islands, free of a written constitution.

He ascribes the UK government's refusal to intervene to fear of embarrassment, citing the 2002 case of Lotfi Raissi, a Londoner, and the first person charged with offences relating to 9/11. He was held for five months in Belmarsh prison while the US sought his extradition. At that time, under the old extradition regime, US authorities were obliged to present solid evidence. They came up with Lotfi Raissi's Algerian descent, and his pilot's licence.

"Funnily enough," says Mr Bermingham, "the judge thought those insufficient reasons to send him to certain death in America, and released him without charge. The problem for the Government is that since then they've signed this non-reciprocal treaty with a country they regard as a trustworthy legal partner. They can't afford for our case to be held here and found to be wrong. But if we're extradited, they think there's that 98 per cent chance we'll end up pleading guilty in the hope of being allowed to go home after a few years, so they can say the system works."

The Prime Minister's Office, says Bermingham, could step in and insist on this crime allegedly committed by Britons against Britons in Britain being tried in Britain, but he isn't optimistic.

And if a miraculous intervention from No 10 delivered him to a British court, and the acquittal he feels certain of? "I'd like to write a book," he says. "I'm not sure it'd sell very well, though: bookshops wouldn't know whether to put it on the fiction or non-fiction shelves."

Called to account: The financier and family man

Born: Teddington, 19 August 1962. Educated at St Benedict's, Ealing, and Bristol University.

1984: Commissioned into the Royal Artillery in 1984, serving in Germany, Northern Ireland and Canada with the Royal Artillery, before leaving the Army in 1989 with the rank of Captain.

1989: Worked for NatWest until 1993, ABN Amro from 1993 to 1998, Greenwich NatWest from 1998 to 2000, Royal Bank of Canada 2000 to 2001.

From 2001: Most recently, he has been a self-employed financial consultant.

Married for 11 years, he has three children: Jemima (eight), Freddie (seven) and Archie (four).

The Independent