R v Governor of Brixton Prison and Another, ex parte Levin
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BELDAM |
| Judgment Date | 01 March 1996 |
| Judgment citation (vLex) | [1996] EWHC J0301-3 |
| Docket Number | No. CO-3273-95 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 March 1996 |
[1996] EWHC J0301-3
Before: Lord Justice Beldam and Mr Justice Morison
No. CO-3273-95
HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION)
(DIVISIONAL COURT)
MR ALUN JONES Q.C. AND MR J. LEWIS (instructed by Reynolds Dawson, London W2) appeared on behalf of the Applicant
MR P. GARLICK (instructed by The Crown Prosecution Service Central Casework International Civil and Appellate Branch, London EC4) appeared on behalf of the Government of the USA and Governor of HMP Brixton, Respondents
Friday, 1st March, 1996
Vladimir Levin, a Russian citizen, moves for a writ of habeas corpus challenging the legality of his detention pursuant to the order of Mr R.D. Bartle, the Metropolitan Stipendiary Magistrate, who on 20th September 1995 ordered his committal in custody on 66 criminal charges to await the direction of the Secretary of State under para. 7 of sched. 1 of the Extradition Act 1989. The applicant is from St. Petersburg. He is an expert computer programmer. He was detained at Stanstead Airport on 3rd March 1995 in execution of a warrant under sec. 1(3) of the Extradition Act 1989 at the request of the United States Government. The applicant was accused of having committed in the United States offences of wire fraud and bank fraud and of conspiring to commit such offences. A warrant was issued for his arrest in the United States District Court for the Southern District of New York on 24th February 1995. No single criminal offence under the law of England and Wales equates to the offence of wire fraud or bank fraud which are respectively violations of Title 18 United States Code Sec. 1343 and sec. 1344. Conspiracy to commit these offences is a violation of Title 18, sec. 371.
In summary, wire fraud consists of devising a plan or trick to defraud or to obtain money or property by fraud and executing such plan or trick by transmitting writings or signals by wire, radio or television communication in inter-state or foreign commerce.
Similarly bank fraud consists of knowingly executing or attempting to execute such a scheme to defraud or to obtain the money or property of a financial institution under its custody or control by false or fraudulent pretences.
The fact that acts or conduct committed in England and Wales and in the United States could give rise to the commission of different criminal offences is recognised by art. 3 of the Treaty so that extradition is to be granted for an act or omission the facts of which disclose an offence within any of the descriptions listed in the schedule to the Treaty or any other offence if the offence is punishable under the laws of both countries by imprisonment for more than one year and the offence consists of a felony under the law of the United States. Further, under the rule of "specialty" a person extradited and returned to the United States cannot be proceeded against for any offence other than an extraditable offence established by the facts in respect of which his extradition has been granted.
In proof of the charges laid against the applicant in the U.S. District Court, the prosecuting authority gave details of acts and conduct which translated into a schedule of some 66 offences under the Criminal Law of England and Wales; they were offences of theft, forgery, false accounting, unauthorised access to a computer with intent to commit or facilitate further offences, conspiracy to commit offences under the Computer Misuse Act and unauthorised modification of computer material.
Sched. 1 of the Extradition Act 1989 lays down the procedure to be followed after the request for extradition and for the hearing of the case. Para. 6–1 requires the Magistrate to hear the case in the same manner and exercising the same jurisdiction and powers as near as may be as if the prisoner were brought before him charged with an indictable offence committed in England or Wales. That is to say he is to enquire into the circumstances as near as may be as on committal for trial for an indictable offence. By para. 7-(1) 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 Magistrate shall "commit him to prison but otherwise shall order him to be discharged".
The case against the applicant was that he and others, including an accomplice called Korolkov, had put into execution a scheme to obtain money, credits and assets under the custody of Citibank by entering unauthorised instructions into Citibank's computer at Parsipenny in New Jersey, thereby securing substantial credits to be made to accounts maintained by Korolkov or companies controlled by him with the Bank of America in San Francisco. The applicant, using his skill as a computer programmer to gain unauthorised access to the Citibank computer, was able to monitor transactions on the accounts of substantial customers and to insert unauthorised instructions to make payment from those accounts to the accounts of Korolkov or his companies.
Had the scheme been successful, sums in excess of $10M. would have been obtained. However, although some amounts were withdrawn successfully, when Korolkov's wife tried to withdraw monies from the accounts in San Francisco in August 1994 she was arrested and thereafter Korolkov agreed to assist the investigating authorities. His evidence formed the backbone of the case presented to the Magistrate. Korolkov said that in October 1992 he had opened accounts with the Bank of America in San Francisco in favour of himself and his wife and of a company called Shore & Co. Later in 1993 he opened a further account in the name of Primorye (U.S.A.) Corp. In July 1994 the applicant approached him privately and told him he had succeeded in transferring a large amount of money through the Citibank computer system to an account at a Finnish Bank (KOP) and that an acquaintance of theirs (Lamin) had obtained $120,000 from that account. The applicant then proposed that he and Korolkov should use the bank accounts at Bank of America in San Francisco for a similar fraud. The applicant would transfer large amounts of money to the accounts of Shore & Co. and Primorye at the Bank of America; Korolkov would withdraw the money and return with it to St. Petersburg and they would divide the proceeds equally. The applicant explained that he could monitor by computer the accounts of companies using the money transfer system and that he would transfer money only from accounts of companies that were engaging in large transactions so that the unauthorised transfers would not be immediately noticed. He mentioned the account of a company in Jakarta which had been transferring millions of dollars on an almost daily basis and which he thought would be less likely to detect the fraud quickly. At the end of July Korolkov went to San Francisco and on Friday, 5th August, the applicant telephoned him and told him that the transfers had been made. After confirming that $304,000 had been transferred into the account of Shore & Co. and $218,000 into the Primorye (U.S.A.) Corp. account, on the following Monday, 8th August, Korolkov went to the Bank of America with a cheque for $8,000 and another for $40,000 drawn on the Primorye account. He drew $8,000 in cash and wired the proceeds to his wife in St. Petersburg. The $40,000 cheque he paid into the joint account of himself and his wife at the Bank of America. He then drew further cheques but by 9th August the transfers to the Primorye account had been questioned and that account and his personal account had been frozen. Thereupon he returned to Russia.
Korolkov then began planning with the applicant a series of additional transfers by which sums were intended to be transferred to accounts in the Netherlands, Finland, Germany, the United States and Israel. In pursuance of this plan, Korolkov's wife flew to San Francisco and opened six different accounts, the numbers of which she telephoned to Korolkov who gave them to the applicant. The fraudulent transfers were made by the applicant at night to correspond with the operational hours of banking in New York. Thus, near midnight on the evening of August 23rd 1994, Korolkov, the applicant and another man known as "Sascha" met to carry out further transfers. Using two computers the applicant and Sascha were seen by Korolkov to execute transfers to an account at the ABN Amro Bank in Middleberg, Netherlands, an account at a bank in Finland, an account at the Deutsche Bank in Germany and to a further account held in a bank in Finland. On the following night Korolkov saw the applicant and Sascha make 10 additional fraudulent wire transfers: 5 transfers totalling just under $200,000 were made to the accounts opened in San Francisco by Korolkov's wife, and additional transfers totalling just under $1M. were transferred to 5 accounts opened by a man called Alex in Israel.
About a month later the applicant used a laser printer to print out information concerning one of the transfers but then tore the print out into pieces and discarded them. Korolkov, however, retrieved the pieces of paper which related to the transfer of $983,770 to the account of Autorig Import/Export at AMB Amro Bank in the Netherlands, which was one of the transfers he had witnessed on the night of 23rd August 1994.
Further evidence was given by Mr Yancy, an Executive Director of Citibank Global Cash Management Services, whose responsibilities included the management of a service called the Financial Institutions...
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