R v Governor of Brixton Prison, ex parte Levin (pet. all.)

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.

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.

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.

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 ...