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NatWest Three snubbed by 35 former colleagues
Times Online
06 June 2007
All but one of 36 former colleagues called upon by the NatWest Three to speak in their defence against Enron-related fraud charges has refused to meet with their lawyers, Times Online has learnt.
Documents seen by Times Online show that lawyers for David Bermingham, Giles Darby and Gary Mulgrew wrote to 36 current and former employees of the Royal Bank of Scotland, which now owns NatWest.
All 36 are advised by RBS lawyers Travers Smith in London.
But only one of the potential witnesses was willing to be contacted about giving evidence at the trial, which is scheduled to begin in October.
As the NatWest Three face trial in America, Penny Wark meets the wife of one of the accused. Sources close to the defence said that the lone former colleague who was willing to meet with the NatWest Three's lawyers — whose identity has not been revealed — is reluctant to travel to the US, which could potentially weaken the usefulness of his testimony.
A spokesperson for the NatWest Three said that they were determined to clear their names despite the setback.
"They are particularly angry about having to face trial in the US rather than in the UK, and since much of what they argued in court in the UK about how their ability to defence would be compromised in Texas has proven to be true," the spokesperson said.
Mark Spragg, the bankers' legal representative in the UK, said he thought it was "highly suspicious" that so few of the potential witnesses were willing to talk and that all — even those who have left RBS — were being represented by the bank's legal advisers, Travers Smith.
Mr Spragg said: "The three have been trying to speak to 36 current and former RBS employees. It is highly suspicious that RBS's lawyers now apparently represent all 36 witnesses and that 35 of the 36 have similarly refused to cooperate. Justice is not being served by preventing the truth from being aired."
But a spokesman for RBS said the matter was for the individuals to decide.
"In a case such as this, it is a matter for any individual whether they wish to accept such a request, and in view of the ongoing proceedings, it would be inappropriate to comment further," the spokesman said.
Stephen Paget-Brown, a partner at Travers Smith, would not comment on his clients' motivations but denied there was a conflict of interest in his firm representing both RBS and the potential witnesses.
He said: "It is not our practice to air confidential client matters in public, and we are not going to be making an exception in this case. We can however confirm that it is absolutely clear that there is no question of there being a conflict of interest. There is an obvious community of interest between [RBS] and its employees and former employees. There is no foundation or substance to the entirely misplaced inferences about our conduct and professionalism."
The list of potential witnesses the bankers intended to call includes Johnny Cameron, the chief executive of corporate markets at RBS.
Under US law, the defence cannot approach the witnesses directly in this case, only through their lawyers.
Criminal lawyers said that there were compelling reasons why potential witnesses may be reluctant to give evidence regardless of their feelings toward their former colleagues or whether they believed they were guilty or not.
Jeremy Summers, a partner at solicitors Russell Jones & Walker, said: "The decision not to testify in the US could be a purely personal one. As well as the inconvenience and unpleasantness of being cross-examined, there is the risk that they may, during their testimony, refer to information that could be used against them by aggressive US prosecutors."
Last month, an inquest heard that Neil Coulbeck, another former colleague of the NatWest Three, killed himself over fears of being extradited to the US to also face trial over the Enron scandal.
Mr Coulbeck, 53, from Woodford Green, northeast London, feared being extradited despite FBI assurances that he was in the clear, Walthamstow Coroner's Court was told.
The coroner ruled that he had killed himself while the balance of his mind was disturbed. It is unlikely that the NatWest Three would succeed in compelling the witnesses to testify against their will.
They could petition American authorities to ask the UK to force them under the Mutual Legal Assistance Treaty, but at best this would result in taped depositions taken several weeks before the trial — less effective than evidence given in person.
The bankers, who are under house arrest in Houston, are each charged with seven counts of fraud.
They are alleged to have conspired with Andrew Fastow, Enron’s former finance director, to execute a complex financial scam that cheated NatWest out of several million dollars.
Mr Fastow, jailed for six years for his role in the collapse of Enron, has agreed to testify against the three men in return for a lighter sentence.
If convicted of all charges they each face a maximum of 35 years behind bars.