R v Governor of Brixton Prison, Ex parte Levin (Levin, Ex parte)

The House held that computer-generated printouts of transaction records created by the interaction of a user and an automated banking system are not hearsay in the ordinary sense and are admissible as evidence of the transactions recorded.

Extradition proceedings conducted under the Extradition Act are criminal proceedings for the purposes of the Police and Criminal Evidence Act 1984. Accordingly, provisions of that Act (including the narrow discretion in section 78) apply to committal and extradition proceedings, although the section 78 discretion is to be exercised very rarely in that context.

The appellant was detained for extradition to the United States on charges of computer misuse, wire and bank fraud. A metropolitan magistrate committed him for surrender after receiving evidence including computer printouts from Citibank and accomplice evidence identifying the appellant as the originator of certain unauthorised transfers.

The appellant sought habeas corpus in the Divisional Court, arguing that the printouts were inadmissible hearsay because extradition proceedings were not "criminal proceedings" for the purposes of the Police and Criminal Evidence Act 1984 and so section 69 did not apply.

The Divisional Court rejected his challenge. By leave the appellant appealed to the House of Lords. The principal issues were (i) whether the Citibank computer printouts amounted to hearsay and, if so, whether they were admissible; and (ii) whether extradition/committal proceedings are "criminal proceedings" for the purposes of the Police and Criminal Evidence Act 1984 and whether section 78 discretion could be exercised to exclude evidence.

1. Outcome: Appeal dismissed. Lord Hoffmann gave the leading speech and the other four Law Lords concurred in the result.
2. Computer records and hearsay (per Lord Hoffmann): computer printouts produced by an automated transaction system record the transactions themselves rather than asserting them. They are analogous to contemporaneous machine-made records (for example a photocopy of a forged cheque) and are not hearsay in the sense that section 69 addresses. Even if regarded as hearsay, section 69 of the Police and Criminal Evidence Act 1984 does not convert otherwise inadmissible material into admissible evidence; it imposes additional requirements for computer-produced statements. The printouts in this case satisfied those requirements and, in any event, would be admissible on ordinary common law principles; their weight is for the tribunal of fact.
3. Extradition proceedings are criminal proceedings (per Lord Hoffmann): historical authorities and the statutory scheme in the Extradition Act 1989 (which directs that extradition hearings be conducted "as nearly as may be" as committal proceedings) support treating extradition as criminal proceedings for the purposes of the 1984 Act. Earlier decisions suggesting extradition is "sui generis" do not require a different conclusion.
4. Section 78 discretionary exclusion (per Lord Hoffmann): section 78 applies to committal and extradition proceedings but its exercise in that context is confined to rare and exceptional cases. The correct test is whether admission would have such an adverse effect on the fairness of the committal/extradition decision that no judge properly directing himself could admit the evidence. Ordinarily that question is for the trial judge and not for the committal magistrate.
5. Practical consequence: any omission by the magistrate to consider section 78 in this case would have been immaterial. The accomplice and computer evidence were sufficiently reliable in the committal context to justify committal. The appellant's habeas corpus claim therefore failed.

• Divisional Court (Queen's Bench Division): application for habeas corpus dismissed; committal to await extradition upheld.
• House of Lords: appeal allowed to be heard; appeal dismissed and committal for extradition upheld (leading speech per Lord Hoffmann).