Selbach v Lithuania

For the purposes of extradition, an investigation discontinued by a prosecuting authority for insufficient evidence does not amount to an adjudication capable of engaging protection against previous acquittal or conviction. The use of the word dismissal does not alter that conclusion where no court or tribunal determined the matter. Nor does a temporary discontinuance, followed by renewed investigation, ordinarily amount to an abuse of process. Where a person resists extradition on the basis that the foreign proceedings would be unfair, the person must first raise a specific reason for that concern. In the absence of such a case, the requesting government need not prove that the foreign proceedings would follow a regular course.

The claimant had been committed at Bow Street to await the Secretary of State’s decision on Lithuania’s request for his extradition. He relied on four earlier Lithuanian investigations which had ended in what the documents described as dismissals. He argued that those events amounted to an adjudication in his favour, or alternatively that returning him to Lithuania to face trial would be an abuse of process.

The court considered the effect of section 6(3) of the Extradition Act 1989, together with the suggested abuse-of-process gloss, and whether the claimant had established any basis for questioning the fairness of a trial in Lithuania.

1. The application for habeas corpus was dismissed. The four earlier Lithuanian investigations appeared to have been prosecutorial enquiries discontinued from time to time for want of adequate material, before being resumed. Nothing in the documents showed that any dismissal was made by a court or tribunal.
2. Section 6(3) of the Extradition Act 1989 protects a person who, if charged in the United Kingdom, would be entitled to discharge under the law relating to previous acquittal or conviction. The court accepted that the principle could also extend to an extradition which would constitute an abuse of process. Neither principle assisted the claimant because there had been no adjudication on which he could rely.
3. The description of the earlier decisions as dismissals had no legal significance in the circumstances. A prosecuting authority’s decision to discontinue an investigation because the evidence is presently insufficient does not confer a right against later proceedings.
4. The decision in Okendeji v the Government of the Commonwealth of Australia [2005] EWHC 471 (Admin) was distinguishable. That case concerned a different statutory scheme in New South Wales, involving a transference of the burden of proof.
5. In relation to the fairness of proceedings in Lithuania, the initial burden lay unequivocally on the claimant to raise a specific reason for believing that he would not receive a fair trial, generally or in relation to the particular case. No such reason had been raised. Lithuania was a government with which the United Kingdom had extradition arrangements, and the requesting government was not required, as a matter of course, to prove that its proceedings would follow a regular course.

The claimant had been committed at Bow Street on 8 July 2004 to await the Secretary of State’s decision on Lithuania’s extradition request. The Divisional Court dismissed the application for habeas corpus.