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Computers, hearsay, and the status of extradition proceedings
Ben Fitzpatrick BA
Lecturer in Law
Centre for Criminal Justice Studies
Faculty of Law
University of Leeds
<B.Fitzpatrick@leeds.ac.uk>
Copyright © 1998 Ben Fitzpatrick.
First Published in Web Journal of Current Legal Issues in association with
Blackstone Press Ltd.
Summary
The decision of the House of Lords in R v Governor of Brixton Prison and Another, ex parte Levin [1997] 3 WLR 117 raises a number of important evidential issues. First, it considers the scope of the hearsay rule (put briefly, that evidence taking the form of an assertion made other than by a witness giving oral testimony in court is hearsay and therefore, generally, inadmissible), and its relationship with evidence generated by computer. The effect of the Police and Criminal Evidence Act 1984, s 69 is dealt with, and it is categorically noted in the House of Lords that s 69 imposes requirements on computer-produced evidence that are utterly independent of the status of that evidence as hearsay or not. The contentious question of whether extradition proceedings are criminal proceedings is examined, with a view to determining whether the Police and Criminal Evidence Act 1984, s 78 (which gives the judge in any criminal proceedings a discretion to exclude prosecution evidence which will have a sufficiently adverse effect on the fairness of those proceedings) can apply to extradition proceedings. Following on from that, the court addresses the question of how, if the discretion indeed can be exercised, it should be exercised.
Contents
- The hearsay point
- The criminal proceedings point
- The implications for the exercise of the discretion in section 78 of the Police and Criminal Evidence Act 1984
The facts
The appellant was a Russian citizen who had been detained pursuant to an order of the Metropolitan Stipendiary magistrate, with a view to his being extradited to the United States. He faced charges before the Federal District Court for the Southern District of New York, of offences relating to the perpetration, by electronic means, of a number of fraudulent credit transfers. It was alleged that he had, from a computer terminal in St Petersburg, gained unauthorised access to the computerised fund transfer service of a New Jersey bank, and had fraudulently transferred funds from the accounts of customers of the bank to accounts controlled by him or his associates. Having been committed to prison pending the decision of the Secretary of State on whether or not he should be surrendered to the United States authorities, Levin applied to the Divisional Court for the issue of a writ of habeas corpus. He claimed that the evidence before the magistrate had not justified the decision to commit. The Divisional Court dismissed his application, and he appealed to the House of Lords.
There were a number of items of evidence against Levin. First, an affidavit from a member of the bank executive outlined the functioning of the computerised fund transfer service: a request for a transfer would be made to the bank computer via the customer's "dumb" computer terminal, so-called because, in respect of the making of the transfer, it does not run any program of its own. In order for the transaction to be completed, the request needs to be authenticated by two employees of the customer, using separate identification and passwords. Connected with the affidavit, printouts were produced, from the automatic computerised credit transfer system. These detailed a number of transfers, amounting in all to $10.7 million, and in respect of which it was alleged that the necessary authorisation, although asserted by Levin, had not, in fact, been given. Second, oral evidence was given by a senior member of the technological staff of the bank. He stated that the computer printouts referred to above were of screen displays of records of payment transactions which had gone through the system. The third piece of evidence against Levin was from an accomplice, who identified him as the person who had initiated the fraudulent credit transfer from his "dumb" terminal in St Petersburg. As further evidence, the accomplice produced, in respect of one of the alleged transfers, a printout from Levin's computer, which the accomplice had acquired surreptitiously.
On appeal to the House of Lords, it was contended, for Levin, that the computer printouts were inadmissible hearsay. Although they would have been admissible in criminal proceedings under the Police and Criminal Evidence Act 1984, s 69 extradition proceedings were not criminal proceedings. The printouts therefore remained inadmissible at common law. As an alternative, were the hearsay point to be rejected, it was contended that the proceedings were indeed criminal proceedings, and that, therefore, the magistrate had a discretion to exclude evidence, conferred by the Police and Criminal Evidence Act 1984, s 78. This discretion should have been exercised to exclude both the computer printouts and the evidence of the accomplice. His appeal was dismissed, the leading speech being delivered by Lord Hoffmann.
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Analysis
The hearsay point
Lord Hoffmann's conclusion that the computer printouts were not hearsay is probably correct, though his reasoning is rather unclear. He adopts a conventional approach to the issue of what constitutes hearsay, by referring to the purpose for which the out-of-court statement, in this case the printouts, is adduced. If it is adduced in order to prove any fact asserted in it then it is hearsay.(1) If it is adduced for some other reason, then it will not be hearsay, and will be admitted, provided it is relevant and does not fall foul of some other exclusionary rule. Thus, he suggests (at p 121):
"The print-outs are tendered to prove the transfers of funds which they record. They do not assert [emphasis added] 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 [the bank]."
This is rather confusing. How the printouts can record the transfers and be tendered to prove them, without asserting that those transfers took place is incomprehensible. One can certainly sympathise with Lord Hoffmann in this situation, as the hearsay rule was designed, at least in part, to prevent the admission of evidence which should properly have been given by a witness who was not at court. Conventional rationales for the rule have difficulty in accommodating the situation in which the evidence in question was not witnessed by anybody, but was the product of the automatic workings of a machine. In such a case, there is no question of a witness who is not at court being the more appropriate giver of that evidence; there is simply no such witness. Hoey (1996) suggests that:
"...some statements, although in form assertive and inadmissible if they were to originate in the minds of human beings, in fact originate in some purely mechanical function of a machine and can be used circumstantially to prove what they appear to assert."
While this formulation may repeat the unhelpful, and rather spurious notion that a computer-produced document merely "appears" to assert its contents, it is helpful in that it focuses on the fact that the issue of real significance is whether the statement in question was generated through, or in the absence of, human agency. Thus, rather than dwell on the purpose for which the computer printouts were adduced, Lord Hoffmann might have made more of the fact that the printouts were the end-product of a process which did not require the active intervention of a human mind. Such an approach might have helped him to avoid the opacity of his statement referred to above. It is worthy of note that he cited, apparently with approval, the evidence given to the magistrate by the senior member of the technological staff of the bank, who described the credit transfer process in these terms (at p 120):
"After the customer accesses the system using the dumb terminal there is no further human intervention before the record is created in [the bank]. 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."
This approach sits comfortably with previous decisions involving mechanically produced documents, and it perhaps surprising that these were not discussed in the present case. In Spiby (1990) 91 Cr App Rep 186, it was held that the printout from a computer which automatically recorded details of, inter alia, telephone numbers dialled by guests staying at a hotel was not hearsay. Just as the computer in that case was merely recording information, namely the telephone number dialled from a particular hotel room, without the input of a human mind, in the present case, the bank computer merely recorded the details of the transactions entered into by the user of the dumb terminal. The lack of human intervention leads inexorably to the conclusion that the computer printouts were not hearsay. (2) Lord Hoffmann's conclusion (at p 121) that "[t]he evidential status of the print-outs is no different from that of a photocopy of a forged cheque" must be correct.
It will be remembered that it was suggested by counsel for Levin that, had proceedings been criminal, the Police and Criminal Evidence Act 1984, s 69 would have rendered the computer printouts admissible, which would otherwise, in his submission, have been hearsay. This was given short shrift by Lord Hoffmann, and, it is submitted, rightly so. The Police and Criminal Evidence Act 1984, s 69 imposes requirements that the document produced by a computer, whether hearsay or not, be reliable within the terms of the section. In essence, it has to be shown, by the party seeking to rely on the computer-generated document, that the computer was being used, and was operating, properly. This burden may not be especially difficult to discharge. In R v Shephard (1991) 93 Cr App Rep 139, it was held that proper operation of the computer could generally be proved by the evidence of a witness, not necessarily a general computer expert, but who was reasonably familiar with the operation of the computer in question. Lord Hoffmann himself observed in the recent House of Lords decision in DPP v McKeown [1997] 1 WLR 295 (at p 302) that "[a]ll that section 69 requires as a condition of the admissibility of a computer-generated statement is positive evidence that the computer has properly processed, stored and reproduced whatever information it received." Nonetheless, a document which is inadmissible by virtue of its being hearsay is not rendered admissible merely by the satisfaction of the reliability criteria in s 69.(3) Thus, in the present case, if the computer printouts has been hearsay, s 69 would not have rendered them admissible.
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The criminal proceedings point
The question of whether the extradition proceedings were criminal proceedings was considered crucial by Levin's counsel. If they were not, then the Police and Criminal Evidence Act, s 69 would have had no application, and, on his faulty conception of the law, the computer printouts would have remained inadmissible hearsay at common law. Although that particular point may have been misconceived, the significance of the criminal or other status of the proceedings remained, in relation to whether a discretion to exclude evidence under the Police and Criminal Evidence Act, s 78 existed, which the magistrate could and should have exercised in respect of the computer printouts and the accomplice evidence.
Lord Hoffmann examined the authorities in the area, which exhibited a degree of inconsistency. In ex parte Alice Woodhall (1888) 20 QBD 832, the Court of Appeal were strongly of the view that an application for a writ of habeas corpus from a person detained with a view to extradition to the United States, where they were accused of having committed forgery, did involve a "criminal cause or matter". Bowen LJ had suggested (at pp 838-839):
"The questions upon which the application for a writ of habeas corpus depend, are whether or not there was evidence before the magistrate of a crime ...having been committed in a foreign country, and whether or not that evidence was sufficient to justify him in committing the accused for trial if the crime had been committed in England. These must be questions arising in a criminal matter ...."
Lord Hoffmann also referred to Amand v Home Secretary and Minister of Defence of Royal Netherlands Government [1943] AC 147, a case involving the extradition of a Dutch soldier to face trial before a military court in the Netherlands. In dismissing his application for a writ of habeas corpus, Lord Wright was of the opinion (at p 162) that:
"if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine, it is a "criminal cause or matter.""
Although these cases might suggest that the hearing of applications for writs of habeas corpus in circumstances where the applicant faces the subsequent possibility of conviction and punishment are, ex hypothesi, criminal proceedings, it should be noted that both Woodhall and Amand concerned a question slightly different from that facing the House of Lords in the present case. In the earlier cases, what was at issue was whether the appellate court had jurisdiction, under the judicature legislation, to hear the application for habeas corpus. In Levin's case, the issue was whether the proceedings were criminal for the purposes of the Police and Criminal Evidence Act 1984. The earlier cases could not be relied upon as conclusive authority for the suggestion that extradition proceedings were criminal for that purpose.
Extradition proceedings bear a close resemblance in purpose to committal proceedings, in that they serve as a preliminary filter, before the commencement of the trial process, whether that trial is to take place in our own, or in a foreign jurisdiction, in the case of committal and extradition respectively. Recognising the analogies, Parliament provided, in the Extradition Act 1989, s 9(2) and Sched. 1, para. 6(1) of, that extradition proceedings should be conducted "as nearly as may be" as if they were committal proceedings. It would appear to follow that, if committal proceedings are criminal proceedings, then extradition proceedings must also be so. The Divisional Court in R v King's Lynn Justices, ex parte Holland [1993] 1 WLR 324, was emphatically of the opinion that committal proceedings were indeed criminal proceedings, and it is difficult to imagine how the contrary could possibly be correct. Nonetheless, the classification of extradition proceedings has proved somewhat problematic. In R v Governor of Belmarsh Prison, ex parte Francis [1995] 1 WLR 1121, the question was considered, once again in a situation of an application for a writ of habeas corpus. McCowan LJ seemed to be of the opinion that extradition proceedings were not criminal. In Levin's case, Lord Hoffmann suggests (at p 121) that McCowan LJ noted, but did not adopt, the submission made to the court in ex parte Francis, that extradition proceedings were sui generis. Whether this is actually the case is rather unclear. McCowan LJ reaches his conclusion, in part, by contrasting the powers available both to the court and those who appear before it, in committal and extradition proceedings. He notes that in the latter there is no opportunity to challenge evidence; there is no abuse of process jurisdiction; the Judges' Rules and the Codes which replaced them do not apply ([1995] 1 WLR 1121, at p 1125). Lord Hoffmann's view, in the present case (at p 121), is fairly forthright:
"[E]xtradition proceedings are criminal proceedings. They are of course criminal proceedings of a very special kind, but criminal proceedings nonetheless."
Having referred to the ex parte Woodhall and Amand cases discussed above, he supports his assertion further, by noting (at p 122):
"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."
Thus, according to the present case, extradition proceedings are to be classed as criminal. This appears to represent, despite Lord Hoffmann's assertion to the contrary (at p 123), a change in the law from that implied in ex parte Francis.
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The implications for the exercise of the discretion in section 78 of the Police and Criminal Evidence Act 1984
Given that extradition proceedings are criminal proceedings, it follows that the Police and Criminal Evidence Act 1984, s 78, which vests in the court a power to exclude prosecution evidence that would have "such an adverse effect on the fairness of the proceedings" that it ought not to be admitted, must apply to them. An analogy can be drawn between this situation, and Beldam LJ's consideration of committal proceedings in ex parte Holland, where he noted (at p 326) that s 78 must apply to any criminal proceedings, as it does not limit itself to the "trial" as is the case with ss 77 and 79.(4) This again constitutes a departure from ex parte Francis, where the express question, answered in the negative, was whether s 78 could apply to extradition proceedings at all.(5)
Given the applicability of s 78 to extradition proceedings,(6) the question remains as to when the discretion will actually be exercised, that is to say, when the section will not merely be applicable, but will, as it were, be actively applied. In general, the courts have been reluctant to offer general guidelines on the exercise of the discretion. It has been suggested by Hodgson J, in R v Samuel [1988] 2 WLR 920, (at p 934) that:
"[i]t is undesirable to attempt any general guidance as to the way in which a judge's discretion under section 78 ... should be exercised. Circumstances vary infinitely."
In extradition proceedings, slightly different considerations apply, from those which are relevant to the trial process. As Lord Hoffmann observes (at pp 122-123), the question posed by s 78 in extradition proceedings is whether the fairness of those proceedings, as opposed to the subsequent trial, will be adversely affected. On the whole, it should be assumed by the magistrate in extradition proceedings that the powers available to the relevant trial judge are sufficient to ensure that the trial itself will be conducted fairly. Thus the scope for the exercise of the discretion in the extradition proceedings themselves is minimal. Lord Hoffmann draws again (at p 123) on the judgment of Beldam LJ, in ex parte Holland, who observed that, in the context of committal proceedings ([1993] 1 WLR 324, 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."
Beldam LJ noted earlier in the same judgment (at p 327) that the different purposes of the various stages of the criminal process meant inevitably that the exercise of the discretion under s 78 would properly vary according to the particular stage under consideration:
"Although Parliament has enacted that the discretion in section 78 of the Police and Criminal Evidence Act 1984 can be exercised in committal proceedings it did so against the background that committal proceedings were the preliminary stage of trial on indictment, that the function of justices at that stage was different from that of the judge at trial ...."
In extradition proceedings, the scope for exercising the s 78 discretion is limited even further by the need not to usurp the aims of the variety of extradition treaties to which the United Kingdom is a party. By employing domestic notions of fairness in proceedings that are inherently transnational, and granting applications of habeas corpus too readily, the magistrate runs the risk of indirectly trespassing on the jurisdiction of the foreign trial court ([1997] 3 WLR 117, at p 123).
Just as our domestic appellate courts show a marked reluctance to interfere with the decision made by the trial judge on whether or not to exercise the s 78 discretion, it appears that the magistrate in extradition proceedings ought not to deny the foreign trial judge the opportunity to be the arbiter of fairness in his or her own court.
In the present case, the magistrate had not been invited to consider the s 78 discretion, as it appears to have been taken at the hearing that he was bound by the decision in ex parte Francis. Lord Hoffmann's suggestion, as has been observed above, that Levin's case does not change the law in this respect is to say the least, contentious: his earlier, unequivocal assertion that s 78 did apply to extradition proceedings does not sit comfortably with it. Nonetheless, whether or not the failure of the magistrate to consider the s 78 discretion from his own initiative was an error of law, Lord Hoffmann stated (at p 123) that the House of Lords would not interfere with the decision to admit the evidence of the accomplice, and the computer printouts, as "[n]o reasonable magistrate" would have done otherwise.
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Conclusions
Levin's case raises a number of important evidential issues. It explores the relationship between computer-produced evidence and the hearsay rule, and shows that confusion as to the role of the Police and Criminal Evidence Act 1984, s 69 is not confined to students encountering it for the first time. It is perhaps rather worrying that an argument that s 69 can transform inadmissible hearsay into admissible evidence reached the House of Lords when the section plainly makes no reference at all to hearsay. On the issue of whether extradition proceedings are criminal proceedings, Lord Hoffmann's pragmatist approach has cleared up the confusion that appears to have been caused in past cases by the fact that an application for a writ of habeas corpus may raise issues of a criminal nature in proceedings which the non-criminal lawyer might be more inclined to class as administrative. Given the decision that extradition proceedings are indeed criminal, the subsequent decision that s 78 is applicable to them, albeit that the discretion will be exercised in practice extremely sparingly, comes as no surprise. Indeed, it is to be welcomed that notice can be taken, through the applicability of s 78, (see Hoey 1996) of the need, from the earliest possible opportunity, to protect the due process rights of a potential extraditee who is liable, through the process of extradition, to become a defendant under the procedural rules of another jurisdiction.
Bibliography
Hoey, A `Analysis of The Police and Criminal Evidence Act, s.69 - Computer Generated Evidence', [1996] 1 Web JCLI <http://webjcli.ncl.ac.uk/1996/issue1/hoey1.html>.
(1) A classic exposition of the rule can be found in Subramaniam v Public Prosecutor [1956] 1 WLR 965, at p 969: "Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by evidence, not the truth of the statement, but the fact that it was made."
(2) It has proved not beyond the courts to err in their application of the relevant rules in this field. In R v Pettigrew (1980) 71 Cr App Rep 39, much energy was expended considering whether the printout of a computer which automatically read the serial numbers of bank notes fed into it fell within an exception to the hearsay rule. It appears to have been overlooked that the printout was not hearsay in the first place.
(3) A hearsay document which satisfies the s 69 criteria may become admissible via ss 23 and/or 24 of the Criminal Justice Act 1988, which allow for the admissibility of certain types of hearsay documents.
(4) S 77 imposes on the trial court particular duties of caution when considering confession evidence given under certain circumstances by a "mentally handicapped" defendant, and s 79 concerns the order of calling of defence witnesses at trial.
(5) The court in ex parte Francis referred to the unreported case of In re Davison (1994), in which the question of the application of s 78 to extradition proceedings was reserved.
(6) Lord Hoffmann observes (at p 122) that future cases may well be guided by the Criminal Procedure and Investigations Act 1996, Sched. 1, para. 26, which expressly excludes the application of s 78 of the Police and Criminal Evidence Act 1984 to committal proceedings. By a process of deduction Lord Hoffmann suggests that the need to treat extradition proceedings "as nearly as may be" as if they were committal proceedings will result in a similar, implied, exclusion from extradition proceedings. It is questionable however, whether the due process rights that s 78 exists, at least in part, to safeguard, could be jeopardised in any particular kind of proceedings without express Parliamentary intervention.