United Kingdom House of Lords Decisions

Levin, In re [1997] UKHL 27; [1997] 3 All ER 289; [1997] 3 WLR 117; [1998] 1 Cr App Rep 22; [1997] Crim LR 891 (19th June, 1997)

LORD GOFF OF CHIEVELEY

My Lords,

      I have had the advantage of reading in draft a speech prepared by my noble and learned friend, Lord Hoffmann and for the reasons he gives I would dismiss this appeal.

LORD NICHOLLS OF BIRKENHEAD

My Lords,

      I have had the advantage of reading a draft of the speech of my noble and learned friend, Lord Hoffmann. I agree that, for the reasons he gives, this appeal should be dismissed.

LORD STEYN

My Lords,

      I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hoffmann. For the reasons he gives I would dismiss the appeal.

LORD HOFFMANN

My Lords,

      Vladimir Levin is a Russian citizen detained pursuant to an order of the Metropolitan Stipendiary Magistrate with a view to his extradition to the United States. He is charged before the Federal District Court for the Southern District of New York with the Federal offences of wire fraud and bank fraud and certain offences relating to the misuse of computers. Put shortly, the allegation is that he used a computer terminal in St. Petersburg to gain unauthorised access to the computerised fund transfer service of Citibank N.A. ("Citibank") in Parsipanny, New Jersey and fraudulently made 40 transfers of funds from the accounts of clients of Citibank to accounts which he or his associates controlled.

      Mr. Levin was arrested on 3 March 1995 in the transfer lounge at Stansted Airport on a provisional warrant issued at the request of the United States Government. There is an extradition treaty between the United Kingdom and the United States which has been given effect by Order in Council, the United States of America (Extradition) Order 1976 (S.I. 1976 No. 2144) made under section 2 of the Extradition Act 1870. The procedure for extradition to the United States is, therefore, governed by the provisions of that Act which have been consolidated in Schedule 1 to the Extradition Act 1989. On 5 May the Secretary of State signified to the metropolitan magistrate that a requisition for Mr. Levin's surrender had been made by the Government of the United States, stating that he was accused of various extradition crimes within the jurisdiction of the United States. It thereupon became the duty of the metropolitan magistrate, pursuant to paragraph 6(1) of Schedule 1, to hear the case in the same manner as if Mr. Levin were charged with an indictable offence committed in this country. Paragraph 7(1) provides that if:

"such evidence is produced as . . . would, according to the law of England and Wales, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England or Wales, the metropolitan magistrate shall commit him to prison, but otherwise shall order him to be discharged."

      The metropolitan magistrate found that the evidence justified Mr. Levin's committal for trial for 66 offences. These included four counts of theft and numerous counts of forgery, false accounting and computer misuse. Accordingly he ordered his committal to prison to await the decision of the Secretary of State as to whether he should be surrendered.

      Mr. Levin moved the Divisional Court for the issue of a writ of habeas corpus. He claimed on various grounds that the evidence adduced before the magistrate did not justify his committal. The Divisional Court dismissed the application and, by leave of the Appeal Committee, Mr. Levin appeals to your Lordships House. Since the hearing in the Divisional Court, the area of dispute has been considerably narrowed. Mr. Jones Q.C., who appeared for Mr. Levin, no longer pursues some of the points there advanced. On the other hand, Mr. Garlick, who appeared for the Government of the United States, no longer seeks to uphold the committal on the four charges of theft. But before I consider the questions which remain, I must summarise some of the evidence put before the magistrate.

      An affidavit of Byron T. Yancey, Executive Director of Citibank Global Cash Management Services, dealt with Citibank's computerised fund transfer service. It is called Financial Institutions Citibank Cash Manager ("FICCM") and enables institutional customers of Citibank to transfer funds to accounts at other financial institutions throughout the world. A request for a transfer is made by using a computer terminal (called a "dumb terminal" because it does not for this purpose run any programme of its own) linked, usually through the telephone system, to Citibank's computer in Parsipanny, N.J. The request must be authenticated by two employees of the customer, each using a separate identification description and password. It is then processed automatically through Citibank's wire transfer department in New York. He produced copies of computer printouts recording 40 transfers of funds amounting in all to $10.7 million which had been duly processed by the system but which the customers purporting to have made the transfers denied having authorised. At the end of his affidavit he certified that the requirements of section 69 (1) of the Police and Criminal Evidence Act 1984 (which restrict the admissibility in criminal proceedings of statements produced by computers) had been satisfied.

      Mr. Kevin L. Shearan, head of the Technology for Cash Management Systems of Citibank gave oral evidence before the magistrate. He said that the documents exhibited by Mr. Yancey were printouts of screen displays of the computer's historical records of payment transactions. He explained how these records were created. A user would access the system from a dumb terminal in his office. By responding to prompts from the computer he would create a payment request stored on disk in the computer. The system would then transmit a copy of the request to the processing system in New York which would automatically generate and process a payment instruction. The transaction thus recorded would be copied to the computer's historical records which could be printed out in the form exhibited by Mr. Yancey. Mr. Shearan said:

"After the customer accesses the system using the dumb terminal there is no further human intervention before the record is created in Parsipanny. The accessing of the system and the responding to the prompts of that system is what creates that record . . . The fact that this document exists on the. . . system [is] because it is a transaction that has taken place."

      Mr. Korolkov, an accomplice, identified Mr. Levin as the person who had initiated the unauthorised payment instructions from his computer terminal in St. Petersburg. In respect of one such instruction he produced a print-out which he said had been generated by Mr. Levin's computer and which he had surreptitiously obtained.

      Mr. Jones's first submission was that the computer print-outs were inadmissible because they were hearsay. In criminal proceedings, he said, they would be admissible under section 69 of the Police and Criminal Evidence Act 1984. But the Divisional Court had decided in Reg. v. Governor of Belmarsh Prison, Ex parte Francis [1995] 1 W.L.R. 1121 that extradition proceedings were not criminal proceedings. Therefore, section 69 did not apply and the print-outs remained inadmissible at common law.

      This argument seems to me wrong at every stage. First, the print-outs are not hearsay. Secondly, if they were, section 69 would not make them admissible. Thirdly, extradition proceedings are criminal proceedings for the purposes of the Police and Criminal Evidence Act 1984.

      The hearsay rule, as formulated in Cross & Tapper on Evidence, 8th ed. (1995), p. 46, states that "an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted." The print-outs are tendered to prove the transfers of funds which they record. They do not assert that such transfers took place. They record the transfers themselves, created by the interaction between whoever purported to request the transfers and the computer programme in Parsipanny. The evidential status of the print-outs is no different from that of a photocopy of a forged cheque.

      If the printouts were hearsay, section 69 would not make them admissible. They might be admissible under sections 23 or 24 of the Criminal Justice Act 1988, which create exceptions to the hearsay rule. But section 69, as Lord Griffiths made clear in Reg. v. Shephard [1993] A.C. 380, does not make admissible any evidence which would otherwise be inadmissible. It is an additional requirement for the admissibility of any statement, original or hearsay, which is produced by a computer. In the Divisional Court Mr. Jones argued that the requirements of the section had not been satisfied, but the court ruled against him and he has not challenged that decision in your Lordships' House.

      Finally, I think that extradition proceedings are criminal proceedings. They are of course criminal proceedings of a very special kind, but criminal proceedings nonetheless. In the Francis case, McCowan L.J. recorded [1995] 1 W.L.R. 1121, 1124, the submission of counsel that extradition proceedings were not criminal proceedings but "sui generis," but I do not think that he went so far as to adopt it. He said, at p. 1125H, only that section 78 of the Police and Criminal Evidence Act 1984, to which I shall later return, had "no application to extradition proceedings."

      Both case law and the terms of the Extradition Act 1989 point to extradition proceedings being categorised as criminal. First, the cases. In Amand v. Home Secretary and Minister of Defence of Royal Netherlands Government [1943] A.C. 147 this House approved the decision of the Court of Appeal in Ex parte Alice Woodhall (1888) 20 QBD 832 that the refusal of an application for habeas corpus by a person committed to prison with a view to extradition was a decision in a "criminal cause or matter." It would seem to me to follow a fortiori that the extradition proceedings themselves are criminal proceedings and in Amand's case Viscount Simon L.C. said, at p. 156, that the cases demonstrated that "the matter in respect of which the accused is in custody may be 'criminal' although he is not charged with a breach of our own criminal law, . . ."

      Secondly, the Extradition Act 1989. Section 9(2) and paragraph 6(1) of Schedule 1 require that extradition proceedings should be conducted "as nearly as may be" as if they were committal proceedings before magistrates. Committal proceedings are of course criminal proceedings and these provisions would make little sense if the metropolitan magistrate could not apply the normal rules of criminal evidence and procedure. The suggestion of counsel in Francis that extradition proceedings were "sui generis" would only make matters worse, because it would throw doubt upon whether the magistrate could apply the rules of civil evidence and procedure either.

      Mr. Jones then submitted that if your Lordships should reject his hearsay point, he wished to reverse his argument and contend that extradition proceedings were indeed criminal proceedings. From this it followed that the magistrate had the discretion conferred by section 78(1) of the Police and Criminal Evidence Act 1984:

"In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

      Mr. Jones said that the magistrate should have exercised his discretion to exclude the evidence of the accomplice Mr. Korolkov and the computer printouts. Admission of the accomplice evidence would be adversely affect the fairness of the proceedings because the magistrate had not been told whether Mr. Korolkov had pleaded to the indictment or had been tried or sentenced or offered immunity. These matters might affect the reliability of his evidence. The admission of the computer printouts was unfair because although it was accepted that the evidence complied with the requirements of section 69 of the Act of 1984, compliance had been merely formal and, the proceedings being for extradition, the magistrate did not have the opportunity which he would have had under paragraph 9 of Schedule 3 to the 1984 Act to require oral evidence of the working of the Citibank computer.

      In the Francis case, as I have said, McCowan L.J. said that section 78 of the Act of 1984 had no application to extradition proceedings. I think that this goes too far. If, as I think, extradition proceedings are criminal proceedings, then section 78 as originally enacted applied to them. In Reg. v. King's Lynn Justices, Ex parte Holland [1993] 1 W.L.R. 324, the Divisional Court said that section 78 applied to committal proceedings and I think it must follow that it also applied to extradition proceedings. (I note parenthetically that, since the committal in this case, committal proceedings have been excluded from the application of section 78 by paragraph 26 of Schedule 1 to the Criminal Procedure and Investigations Act 1996 and it seems likely that the effect of section 9(2) and paragraph 6(1) of Schedule 1 to the Act of 1989 is to exclude extradition proceedings as well) On the other hand, it must be borne in mind that when the section is being applied to committal or extradition proceedings, the question is whether the admission of the evidence would have such an adverse effect on the fairness of those proceedings that the court ought not to admit it. This is not at all the same thing as the question of whether the admission of the evidence at the trial would have an adverse effect on the fairness of the trial. On the contrary, the magistrates should ordinarily assume that the powers available to the judge at the trial will ensure that the proceedings are fair. The question is, therefore, whether the admission of the evidence would have an adverse effect on the fairness of the decision to commit or extradite the accused for trial, even if the trial is a fair one. I think that the circumstances would have to be very unusual before magistrates could properly come to such a decision and I am sure that Beldam L.J. was right when he said in Holland's case, at p. 328:

"Examining justices could exclude the evidence from their consideration only if satisfied that its admission at the trial would be so obviously unfair to the proceedings that no judge properly directing himself could admit it. I have no doubt that even in such a case it would generally be far better to leave the decision to the trial judge who will, as I have said, be in a better position to assess the effect on the fairness of the proceedings and have had greater experience of deciding such questions."

      In extradition proceedings there is even less scope for the exercise of the discretion because, as McCowan L.J. pointed out in Francis's case, (quoting the Supreme Court of Canada in Kindler v. Canada (Minister of Justice) (1991) 8 D.L.R. (4th) 438, 488), extradition procedure is founded on concepts of comity and reciprocity. It would undermine the effectiveness of international treaty obligations if the courts were to superimpose discretions based on local notions of fairness upon the ordinary rules of admissibility. I do not wish to exclude the possibility that the discretion may be used in extradition proceedings founded upon evidence which, though technically admissible, has been obtained in a way which outrages civilised values. But such cases are also likely to be very rare.

      The magistrate in this case was not asked to exercise a discretion under section 78 because he was bound by Francis [1995] 1 W.L.R. 1121. I have some doubt as to whether it is proper now to complain that he failed to exercise it: your Lordships' decision does not change the law and if it was to be contended that he had such a discretion, he should have been invited to exercise it. Assuming, however, that the magistrate erred in law in failing to consider the exercise of the discretion, I have no doubt that the error was immaterial. No reasonable magistrate would have excluded either Korolkov's evidence or the computer evidence. The criticisms of Korolkov's evidence are matters which can be raised at the trial, when the facts about his position can be fully ascertained. The computer evidence would, apart from section 69 (which was conceded to be satisfied) be admissible at common law and its weight would be a matter for the tribunal of fact. Any questions about the operation of the computer at Parsipanny could also be raised at the trial. Mr. Jones accepted that the decision of the metropolitan magistrate was not vitiated unless there had been what Lord Browne-Wilkinson in Reg. v. Hull University Visitor, Ex parte Page [1993] AC 682, 702D described as a "relevant error of law, i.e., an error in the actual making of the decision which affected the decision itself." In my view there was no such error and I would therefore dismiss the appeal.

LORD HUTTON

My Lords,

      I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend, Lord Hoffmann. I agree with it and for the reasons which he gives I would dismiss the appeal.