Levin, In re

The House of Lords dismissed the appeal against committal for extradition. The court held that the Citibank computer printouts were not hearsay because they were records created by interaction between a user and the computer system and were admissible in the committal proceedings. It further held that, even if they were hearsay, the requirements of section 69 of the Police and Criminal Evidence Act 1984 operate as conditions for admissibility of computer-produced statements rather than as a free-standing power to render otherwise inadmissible material admissible. The court also held that extradition proceedings are criminal proceedings for the purposes of the Act and that section 78 of the Police and Criminal Evidence Act 1984 (the discretion to exclude evidence on fairness grounds) can in principle apply, but its exercise in committal or extradition proceedings is tightly constrained and would be rare. The failure of the magistrate to entertain that discretion (given the state of the law at the time) was immaterial to the decision to commit.

Background and facts.

Vladimir Levin, a Russian citizen, was arrested at Stansted Airport on a provisional warrant issued at the request of the United States. He faced United States federal charges of wire and bank fraud and offences relating to misuse of computers alleging unauthorised electronic transfers from Citibank accounts totalling about $10.7 million. The Secretary of State certified that a requisition for surrender had been made and the metropolitan stipendiary magistrate conducted committal proceedings under Schedule 1 to the Extradition Act 1989 and committed Mr Levin to prison for extradition.

Procedural posture and nature of application.

• The applicant applied to the Divisional Court for a writ of habeas corpus challenging the committal. The Divisional Court dismissed the application. By leave, Mr Levin appealed to the House of Lords.

Issues framed.

1. Whether the computer printouts and other documentary material were inadmissible hearsay in the committal proceedings.
2. Whether section 69 of the Police and Criminal Evidence Act 1984 made such computer-produced material admissible and the proper scope of that provision.
3. Whether extradition proceedings are "criminal proceedings" for the purposes of the Police and Criminal Evidence Act 1984 and, if so, whether the court had a discretion under section 78 to exclude evidence on fairness grounds in extradition committal proceedings.
4. Whether any failure by the magistrate to exercise such discretion or other legal error vitiated the committal decision.

Evidence before the magistrate. Affidavits and oral evidence from Citibank staff explained the operation of its Financial Institutions Citibank Cash Manager system and produced computer printouts of the disputed transfers. An accomplice, Korolkov, identified Levin as the initiator of some instructions and produced a machine-generated printout purportedly from Levin's terminal.

Court's reasoning and disposition.

• The printouts were not hearsay: they were contemporaneous computerized records of transactions created by the interaction of a user and the computerised system and so occupied the same evidential status as records of a transaction. Section 69, in any event, imposes conditions for admissibility of computer-produced statements rather than creating admissibility for otherwise inadmissible material; the magistrate had found those conditions satisfied and that finding was not challenged here.
• Extradition proceedings are criminal proceedings. Authorities going back to Amand and the structure of the Extradition Act 1989 (in particular paragraph 6(1) and paragraph 7(1) of Schedule 1 and section 9(2)) support treating committal for extradition as akin to committal proceedings for criminal matters.
• Section 78 of the Police and Criminal Evidence Act 1984 can in principle apply to committal or extradition proceedings, but its operation is constrained: magistrates should be slow to exclude evidence on fairness grounds where the trial judge will have fuller means to assess admissibility and fairness, and the interests of comity in extradition make such exclusions rare. Any possible error by the magistrate in failing to consider section 78 was immaterial because no reasonable magistrate would have excluded the accomplice evidence or the computer evidence.

Relief sought: A writ of habeas corpus seeking release from custody by challenging the lawfulness of committal for extradition.

Appeal dismissed. The House of Lords held that the magistrate's committal was lawful: the computer printouts were not hearsay or, alternatively, met the conditions for admissibility under section 69 of the Police and Criminal Evidence Act 1984; extradition proceedings are criminal proceedings for the purposes of the Act; and the discretion under section 78, even if available, would rarely justify exclusion in committal/extradition proceedings and any failure to exercise it was immaterial in the circumstances.

Application for writ of habeas corpus heard in the Divisional Court of the Queen's Bench Division (application dismissed). By leave of the Appeal Committee Mr Levin appealed to the House of Lords which delivered judgment on 19 June 1997 ([1997] UKHL 27).