Law Report: Proceedings for extradition are criminal proceedings

LAW REPORT 2 July 1997

Re Levin (application for a writ of habeas corpus); House of Lords (Lord Goff of Chieveley, Lord Nicholls of Birkenhead, Lord Steyn, Lord Hoffman, Lord Hutton) 19 June 1997

Proceedings before a magistrate to decide whether there was sufficient evidence to commit a person to prison pending a decision by the Home Secretary as to his extradition were criminal proceedings.

The House of Lords dismissed the appellant's appeal against the refusal by the Divisional Court of his application for a writ of habeas corpus.

The appellant was a Russian citizen who had been detained with a view to extradition to the United States. It was alleged that he had used a computer terminal in St Petersburg to gain unauthorised access to the computerised fund transfer service of Citibank NA in New Jersey, and had made fraudulent transfers of funds.

The procedure for extradition to the United States was governed by the provisions of the Extradition Act 1870 which had been consolidated in Schedule I to the Extradition Act 1989. It was the duty of the metropolitan stipendiary magistrate, pursuant to paragraph 6(1) of Schedule I, to hear the appellant's case in the same manner as if he were charged with an indictable offence committed in this country.

The magistrate found that the evidence justified the appellant's committal for trial, and accordingly ordered his committal to prison to await the decision of the Home Secretary as to whether he should be surrendered. The appellant's application to the Divisional Court for the issue of a writ of habeas corpus, claiming that the evidence adduced before the magistrate had not justified his committal, was dismissed.

Alun Jones QC and James Lewis (Reynolds Dawson & Co) for the appellant; Paul Garlick QC and David Parry (CPS) for the Governor of Brixton Prison and the United States Government.

Lord Hoffman said that the evidence before the magistrate had included an affidavit of a director of Citibank which dealt with the computerised fund transfer service. The witness had produced copies of computer printouts recording unauthorised transfers of funds amounting in all to US$10.7m. Another employee of Citibank had given oral evidence explaining how the computer records were created.

An accomplice had identified the appellant as the person who had initiated the unauthorised payment instructions from his computer terminal in St Petersburg.

It had been submitted for the appellant that the computer printouts were hearsay and inadmissible. They would be admissible in criminal proceedings under section 69 of the Police and Criminal Evidence Act 1984, but R v Governor of Belmarsh Prison, ex parte Francis [1995] 1 WLR 1121 had decided that extradition proceedings were not criminal proceedings.

That argument seemed wrong at every stage. The printouts were not hearsay. They did not assert that the transfers had taken place: they recorded the transfers themselves.

Extradition proceedings were criminal proceedings, of a special kind, but criminal proceedings none the less. In ex parte Francis McCowan LJ had said only that section 78 of the 1984 Act had no application to extradition proceedings.

Both case law and the terms of the Extradition Act 1989 pointed to extradition proceedings being catogorised as criminal: see Armand v Home Secretary and Minister of Defence of Royal Netherlands Government [1943] AC 147; and section 9(2) of and paragraph 6(1) of Schedule I to the 1989 Act.

It had been submitted, alternatively, that extradition proceedings were criminal proceedings, and that the magistrate should have exercised his discretion under section 78(1) of the 1984 Act to exclude the evidence of the accomplice and of the computer printouts.

McCowan LJ had gone too far in ex parte Francis in saying that section 78 had no application to extradition proceedings. If it applied to committal proceedings it must also apply to extradition proceedings, although it was likely that since the committal in the present case extradition proceedings had been excluded from the operation of section 78 by the Criminal Procedure and Investigations Act 1996.

The question was, however, whether the admission of the evidence would have such an adverse effect on the fairness of the extradition proceedings that the court ought not to admit it. No reasonable magistrate would have excluded the evidence in the present case. The appeal was dismissed.

Kate O'Hanlon, Barrister