QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| IN THE MATTER OF AN APPLICATION FOR A WRIT OF HABEAS CORPUS AD SUBJICIENDUM AND IN THE MATTER OF THE EXTRADITION ACT 1989 MATTHEW DARREN HOLMES
|- and -
|(1) THE GOVERNOR OF BRIXTON PRISON
|(2) THE GOVERNMENT OF GERMANY
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Clair Dobbin (instructed by the CPS) for the Respondents
Crown Copyright ©
Mr Justice Stanley Burnton:
"The accused is strongly suspected in Frankfurt am Main and other places in the period from 15 August 2000 to 26 September 2000 through one independent act having misused a power to act for or engage another to act for the assets of another person granted by statute, public authority or legal transaction or having violated a duty to protect the financial interests of another granted by statute, public authority, legal transaction or trustee relationship, and thus having caused a detriment to the financial interests he was to protect.
In the period from 18 October 1999 to 17 October 2000, the Accused before trial was employed as temporary staff at the Commerzbank Aktiengesellschaft (AG) in Frankfurt am Main. As part of this employment he worked in the Central Service Global Operations Investment Banking (CGO), responsible for securities development. He took advantage of this post to issue on 15 August 2000 via the SWIFT (Society for Worldwide Interbank Financial Telecommunication) payments system from the Commerzbank AG a payment order for USD 15,583,128.57 to the ABN Amro Bank in Amsterdam. The Accused before trial entered as recipient a company called Wolpert Consultants Inc., and an account held by this company at the ABN Amro Bank in Amsterdam, number 403893402. There was no underlying transaction for the payment order, the specified account of Wolpert Consultants Inc. at the ABN Amro Bank was dormant up until that time, i.e. there had been no movements to or from the account. This fact was known to the Accused before trial, who without authorisation used the passwords of Witnesses Vogt and Phanekham, who worked in the same department as the Accused before trial, to conceal his own involvement in the transfer. After the incorrect use of the sift message type MT202, which is to be used only for bank-to-bank payments, had led to the ABN Amro Bank to make queries and the amount had initially been credited to the customer account at the ABN Amro Bank only subject to confirmation, the Accused before trial once again used his position at the Commerzbank AG to nevertheless confirm in three messages dated 17, 21 and 23 August 2000 to the ABN Amro Bank in Amsterdam, contrary to the truth, that the transfer was in order and the authorisation to credit the amount to the customer account. On the basis of these confirmations, the reservation was withdrawn and the instructed amount credited to the benefit of Wolpert Consultants Inc. Directly after this crediting, the balance was remitted in the period from 25 August to 26 September 2000 mainly via electronic transfer (home banking) to various company accounts, inter alia in the Bahamas, Switzerland, Australia, Austria and Indonesia.
The Accused before trial, who terminated his employment with the Commerzbank AG more or less at the same time, was acting in his preconceived intention to damage the assets of the Commerzbank AG and to enrich himself or other non-entitled third persons.
This act constitutes a violation of Section 266 Subsection 1 of the German Criminal Code.
The strong suspicion arises from the following facts.
1. Message reports dated 15 August 2000, 17 August 2000, 21 August 2000 and 23 August 2000.
2. Documents relating to the company Wolpert Consultants Inc..
3. Testimony of Oliver Vogt, Marie-Noel Phanakham, Oliver Forchel, Oliver Lemkuhl, the director and head of the Business Management Department, Central Services Global Operations Investment Banking, Joachin von Eiberg, Lutz Kirchner of the Internal Auditing Department – all of Commerzbank AG."
"It is hereby certified that the photograph reproduced above sent to the Federal Criminal Office in Wiesbaden by Interpol London on 21 March 2000 is that of the Accused before trial Matthew Holmes, born on 4 December 1973 in Benfleet, Great Britain."
The document to which the photograph was attached stated that the photograph had been taken on 26 October 2000, for "Identification purposes/international search".
The identity of the Applicant
The offences under English Law
"…on a day between the 14th day of August 2000 and 27th September 2000 dishonestly obtained for himself a money transfer in the sum of US$ 15,583,128.57 by deception, namely by falsely representing that the said transfer constituted bona fide banking transaction effected by or on behalf of Commerzbank Aktiengellenshaft (AG) and/or a person transacting business with that bank…"
"15A.—(1) A person is guilty of an offence if by any deception he dishonestly obtains a money transfer for himself or another.
(2) A money transfer occurs when—
(a) a debit is made to one account,
(b) a credit is made to another, and (c) the credit results from the debit or the debit results from the credit.
(3) References to a credit and to a debit are to a credit of an amount of money and to a debit of an amount of money.
(4) It is immaterial (in particular)—
(a) whether the amount credited is the same as the amount debited
(b) whether the money transfer is effected on presentment of a cheque or by another method
(c) whether any delay occurs in the process by which the money transfer is effected
(d) whether any intermediate credits or debits are made in the course of the money transfer
(e) whether either of the accounts is overdrawn before or after the money transfer is effected.
(5) A person guilty of an offence under this section shall be liable on conviction on indictment to imprisonment for a term not exceeding ten years.
15B.—(1) The following provisions have effect for the interpretation of section 15A of this Act.
(2) "Deception" has the same meaning as in section 15 of this Act.
(3) "Account" means an account kept with—
(a) a bank or
(b) a person carrying on a business which falls within subsection (4) below."
"On the basis of these confirmations, the reservation was withdrawn and the instructed amount credited to the benefit of Wolpert Consultants Inc. Directly after this crediting, the balance was remitted …"
"Although I do not have the precise details of the account, I am satisfied that the sum of approximately US$ 15½ million was taken from an account and that it was an account with a credit balance and not an overdraft. I am satisfied in taking the money from the account and applying it elsewhere that there was an appropriation and that it was property capable of being stolen."
"Although it is difficult to find clear authority for the proposition, when property has been obtained by fraud equity imposes a constructive trust on the fraudulent recipient: the property is recoverable and traceable in equity."
"… if the contentions of the Crown are well founded and if in each case of secret profit a trust arises which falls within section 5, then a host of activities which no layman would think were stealing will be brought within the Theft Act 1968. As this court pointed out in Kaur v Chief Constable for Hampshire  1 W.L.R. 578, 583:
'the court should not be astute to find that a theft has taken place where it would be straining the language so to hold, or where the ordinary person would not regard the defendant's acts, though possibly morally reprehensible, as theft.'
The second matter is this. There is a clear and important difference between on the one hand a person misappropriating specific property with which he has been entrusted, and on the other hand a person in a fiduciary position who uses that position to make a secret profit for which he will be held accountable. Whether the former is within section 5, we do not have to decide. As to the latter we are firmly of the view that he is not, because he is not a trustee."