Mention extradition to a British business executive and he or she will, almost certainly, think of the “NatWest Three” and their long, unsuccessful fight against being sent to Texas to answer Enron-related charges. And they will, almost certainly, be wrong.

Because of a high-profile campaign, and the UK business lobby's opposition to the extradition, the focus has been on the risk from the United States, a threat that has remained dominant in the British boardroom.

Yet the reality is different, according to lawyers defending businessmen and women against extradition. The risk of extradition to other European Union states is equal to, if not greater than it is to the US.

This is because of the European arrest warrant (EAW), introduced in the Extradition Act 2003, which created a fast track and simpler system for the transfer of criminal suspects between EU member states.

The EAW, designed in the spirit of closer EU co-operation, was adopted enthusiastically. Jonathan Pickworth, UK head of regulation at DLA Piper, and other experts, say that now it accounts for most extradition requests received by Britain. It is thought that this year the number of requests sent to the UK will exceed 1,000 for the first time. Many will relate to non-business crimes, but, with an expected surge in criminal investigations relating to corporate crime as Europe struggles with an economic downturn, many extradition lawyers, including Louise Delahunty, a partner at Simmons & Simmons, are reminding executives of the risk from Europe.

According to Ms Delahunty: “A small number of high-profile cases have created a situation where the threat of extradition to the US dominates the UK business community's collective consciousness. That risk remains and should not be ignored, but UK plc must acknowledge the increasing risk from our nearer neighbours.”

Anand Doobay, a partner at Peters & Peters, said that the EAW is particularly dangerous for executives because it removed several safeguards that existed under the previous system. The most significant of these concerns dual criminality, a fundamental protection in extradition law that has been partly abolished. Before the EAW, an EU state could request the extradition of a British executive only if the conduct he or she was accused of in the extraditing country would also amount to a crime in Britain.

This remains under the EAW, except for 32 categories of crime in which there is no need to prove that it is a criminal offence in both countries. Mr Doobay said: “The 32 categories on the list are general and so could be used to cover behaviour that is not criminal in the UK, particularly as more matters, which would once have been regulatory, are now criminal. Germany, for instance, has different business crime laws than the UK and so German prosecutors could request the extradition of a British executive for conduct that they have classified under the broad umbrella of fraud but which would not amount to a crime in the UK.”

As well as being easier and quicker — the EAW process must be completed within 60 days — executives who receive a European request have slimmer chances of appeal. The EAW removed the Secretary of State's veto and abandoned the principle of triviality, so even very minor alleged offences could be extraditable.

Ms Delahunty said that another concern was that executives extradited to some EU member states cannot rely on the same judicial and human rights safeguards that they can in the UK. Fair Trials International and the Committee for the Prevention of Torture have raised concerns about the treatment of suspects within the EU.

Despite this, British courts have been extremely reluctant to block EAW extraditions on human rights grounds because all members of the European Union are bound by and assumed to have implemented uniform human rights laws.

European Arrest Warrant

— In effect since Jan 1, 2004

— Available to EU members

— Process takes maximum of 60 days — the average extradition takes between 11 and 43 days

— UK, France, Spain and Poland among most active users

— 32 categories of offence do not require dual criminality

— Appeals possible on grounds of age, time since alleged crime and human rights

Source: EU, The Times

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