Holmes v Governor of Brixton Prison & Anor

In extradition proceedings, the court must assess the information supplied by a foreign authority realistically and without imposing unnecessary technicality. A money transfer under Theft Act 1968, section 15A, requires a credit and a causally connected debit, but it is unnecessary to identify the precise account debited if the evidence establishes that such a debit must have occurred. A conditional bank credit is not effective for section 15A purposes until the reservation is removed. Property obtained by fraud may be held on constructive trust for the defrauded party, and the subsequent dishonest appropriation of that property may constitute theft under sections 4 and 5. The court also confirmed that the location of the bank account does not prevent reliance on English law where contrary foreign law is not proved.

The applicant sought habeas corpus against his detention following committal by Bow Street Magistrates’ Court under section 9(8)(a) of the Extradition Act 1989, pending the Secretary of State’s decision on Germany’s extradition request. Authority to proceed had been issued under section 7, identifying alleged conduct corresponding to theft and obtaining a money transfer by deception in English law.

Before the Divisional Court, the applicant challenged the committal on two grounds: insufficient evidence that he was the person named in the German arrest warrant, and failure to establish that the alleged conduct would constitute either English offence. The central issues were identity and whether the alleged bank transfer satisfied the statutory requirements for extradition.

1. Identity. The Senior District Judge was entitled to find, and the Divisional Court found, that the applicant was the person identified in the German arrest warrant. The matching name and date of birth, together with the certified photograph, were sufficient. The discrepancy in the stated date of the photograph showed no more than an error as to when it had been taken.
2. Obtaining a money transfer by deception. The alleged conduct satisfied section 15A of the Theft Act 1968. A bank account is not credited for section 15A purposes while a reservation prevents the account holder from dealing with the funds. The credit becomes effective when the reservation is withdrawn following the deceptive confirmations.
3. Section 15A also requires a debit to an account causally connected with the credit. Although the arrest warrant did not identify the precise account debited, the court was entitled to take judicial notice of ordinary banking practice. A transfer of this kind necessarily involved a debit to some bank account, whether a customer account, an internal account or an account held with another bank.
4. Theft. The court did not need finally to decide the theft charge, because the money-transfer offence was made out. Its provisional view was that theft was also established. If the recipient account had been in England, the funds obtained by fraud would have been held on constructive trust for Commerzbank. The beneficial interest was property belonging to Commerzbank under sections 4 and 5 of the Theft Act 1968, and the applicant’s subsequent transfer of the funds amounted to dishonest appropriation under section 5(3).
5. The court distinguished the secret-profit reasoning in Attorney-General’s Reference (No. 1 of 1985). The present case concerned fraudulent taking of specific property, not merely a fiduciary employee’s secret profit. Foreign law was presumed to be the same as English law unless proved otherwise. The location of the account in the Netherlands was therefore immaterial.
6. The application failed because at least one English criminal charge was made out. The court emphasised that extradition material should be considered realistically rather than over-critically, particularly where foreign authorities naturally frame allegations by reference to their own law.