Holmes v Governor of Brixton Prison and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stanley Burnton |
| Judgment Date | 20 August 2004 |
| Neutral Citation | [2004] EWHC 2020 (Admin) |
| Docket Number | Case No: CO/1997/2004 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 August 2004 |
[2004] EWHC 2020 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Henriques and Mr Justice Stanley Burnton
Case No: CO/1997/2004
In The Matter Of An Application For A Writ Of Habeas Corpus Ad Subjiciendum And In The Matter Of The Extradition Act 1989
Mark Summers (instructed by Jefferies) for the Applicant
Clair Dobbin (instructed by the CPS) for the Respondents
This is the judgment of the Court.
This is an application by Matthew Holmes for a writ of Habeas Corpus. He contends that his detention in custody pursuant an order for committal made by Bow Street Magistrates' Court under section 9(8)(a) of the Extradition Act 1989 on 24 March 2004, to await the decision of the Secretary of State for the Home Department on a request of extradition by the government of Germany, was unlawful. The authority to proceed under section 7 of the 1989 act was given on 7 October 2003. It specified, for the purposes of section 7(5), that the conduct of which the applicant was accused appeared to the Home Secretary to be conduct which had it occurred in the United Kingdom, would have constituted offences of theft and obtaining a money transfer by deception.
The committal papers before Senior District Judge Workman included a certified translation of the arrest warrant relating to the applicant. The warrant included the following statement:
"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."
The applicant was identified by his name, stated to be Matthew Holmes, his date of birth, 4 December 1973, his place of birth and a photograph which indisputably is a photograph of the applicant. The photograph was certified as follows:
"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".
It was submitted on behalf of the applicant to the Senior District Judge that there was insufficient evidence before him to enable him to be satisfied beyond reasonable doubt that the person before him, namely the applicant, was the person wanted by the German government. Secondly, it was submitted that the conduct alleged in the warrant did not amount under English Law to either the offence of theft or that of obtaining a money transfer by deception. The District Judge rejected these submissions. Mr Summers, on behalf of the applicant, submits to us that the District Judge's rulings were in error on both matters. We shall deal first with the question of identity and secondly with the question whether the offences under English law, or one of them, were or was made out.
The identity of the Applicant
Mr Summers' only point on the issue of the identity of the applicant is that the photograph in evidence is stated to have been taken on 26 October 2000, after the date it is said to have been sent by Interpol London to the Federal Criminal Office in Wiesbaden, which is 21 March 2000. He suggested that the evidence before the Senior District Judge did not exclude the reasonable possibility that there had been identity theft by the alleged true offender, who had used the name of the applicant, or that in error the applicant's photograph had been substituted for the photograph taken on 26 October 2000.
As mentioned above, the Senior District Judge was satisfied that the applicant was the person referred to in the warrant. He noted that the applicant had given his name as Matthew Darren Holmes (i.e., the same first and family names as the man described in the warrant) and that he had given as his date of birth the date on the arrest warrant. The certificate was clear and unambiguous in stating that the man in the photograph was the man whose arrest was sought. The discrepancy in the date of the photograph showed no more than that there had been a mistake as to the date on which it had been taken.
We have no doubt that the Senior District Judge was entitled to come to this decision, and it is the decision to which we have come, for the same reasons as he gave. There is no doubt that the applicant is the person whose arrest is the subject of the arrest warrant and who is alleged to have committed the criminal acts to which it relates.
The offences under English Law
We turn to consider the more difficult question raised by this application, namely whether the conduct alleged, if it had occurred in the UK, would have amounted to at least one of the offences referred to in the authority to proceed. The first charge, as amended, alleged that the Applicant:
"…on a day between the 14 th day of August 2000 and 27 th 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…"
The offence of obtaining a money transfer by deception was introduced by the Theft (Amendment) Act 1996 as a result of the decision of the House of Lords in R v Preddy [1996]AC 815. Section 15A of the Theft Act 1968 as so amended is as follows:
"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...
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