Judicial torture and the NatWest 3. The case of the “NatWest three” has stirred up huge concern among business people in the UK. This week, however, we learn that the three former NatWest bankers have pleaded guilty to wire fraud. So was this just much British ado about nothing? My answer is: “no”. The fact that these three men pleaded guilty does not prove they were. It demonstrates that the offers made by US prosecutors are of a kind sensible people cannot refuse. The pressures the former can exert make it rational, even for the innocent, to plead guilty. I do not know whether that happened here. But it would not be very surprising.
Plea-bargaining is effective because of four salient features of American justice: the exceptional severity of punishment; the justified terror of what might happen in prison; the uncertain outcome of fighting cases before juries; and the possibility of obtaining a far lighter sentence by agreeing to pleas of guilty.
In the case of the NatWest three, the accused faced the possibility of up to 35 years in prison for their alleged offences. It is a reflection of the gulf in culture that has grown up between the US and the UK that what are in effect life sentences might be imposed for their alleged involvement in helping Andrew Fastow, then Enron’s chief financial officer, defraud Enron.
Such a sentence would be far longer than all but the tiniest proportion of murderers could expect to serve in the UK. Yet, apparently, it is regarded as perfectly reasonable in the US. Nor is this all. A sentence in a US prison, particularly for middle-class men, is likely to be entry into a lifetime of torment. Indeed, a few cynical Americans responded to complaints about what happened to Iraqi inmates in Abu Ghraib by arguing that it could not truly be torture since it was no worse than what might happen to inmates of a US prison.
To my mind, this system is tantamount to extracting confessions of guilt under a form of psychological torture. That torture consists of the reasonable fear of being found guilty and fear of the length of time one might then serve in prison and of what might happen while one was there. All but exceptionally brave people will confess to almost anything to escape even the possibility of torture. In the same way, the majority of people would surely confess to almost anything to avoid the possibility of spending the rest of their lives in prison. Recognition of the meaninglessness of confessions extracted under threat of torture was the main reason civilised jurisdictions abandoned its use. The same objection applies to pleas of guilty made under the kind of plea bargaining employed in the case of the NatWest three.
Let me be clear: I am not asserting that the men are innocent. But the fact that they have made a plea of guilty does not prove their guilt. It could just as well show that the US judicial system has a potent machine for extracting pleas of guilty to lesser charges. In this way, it has also effectively eliminated a presumption of innocence. It is, for this reason, not a system with which the UK should retain its current extradition arrangements. At the least, the US must be asked to make a prima facie case. The conclusion is that simple. [Financial Times]