Barnette v United States of America

Registration of an external confiscation order under section 97(1)(c) of Criminal Justice Act 1988 turns on whether enforcement in England and Wales would offend the interests of justice, judged according to English law. The enquiry is fact-sensitive and should take a broad, non-technical view of foreign procedures, with Convention jurisprudence as guidance rather than a rigid code. Section 6 of Human Rights Act 1998 does not create an independent bar merely because alleged unfairness occurred in foreign proceedings. Comity and international assistance against crime support registration where the statutory conditions are met. A foreign fugitive-disentitlement dismissal does not automatically make registration unjust. The court must consider the proceedings as a whole, representation, consideration of the merits, and whether effective alternative sanctions existed.

The Government of the United States sought registration in England of an external confiscation order made by a United States District Court against property connected with fraud proceedings. On 12 June 2002, Stanley Burnton J ordered registration in the Administrative Court.

The appellant argued that the foreign proceedings would have breached article 6 and article 1 of the First Protocol to the European Convention on Human Rights if the Convention had applied, and that registration would therefore be unlawful under section 6 of the Human Rights Act 1998. The United States Courts of Appeal had dismissed the appeals under the fugitive disentitlement doctrine, although they considered several substantive arguments. The central issue was whether registration was contrary to the interests of justice under section 97(1)(c) of the Criminal Justice Act 1988.

The Court of Appeal, in a unanimous judgment delivered by the Lord Chief Justice with Kennedy LJ and Scott Baker LJ agreeing, dismissed the appeal.

1. Statutory framework. The order satisfied section 97(1)(a) and (b) of the Criminal Justice Act 1988: it was in force, no longer subject to appeal, and the appellant had notice of the proceedings. The remaining question was whether enforcement would be contrary to the interests of justice under section 97(1)(c).
2. Human rights argument. Section 6 of the Human Rights Act 1998 did not create an independent obstacle. A domestic court properly applying section 97 should not register an order where enforcement would itself offend Convention standards. However, any alleged unfairness in the United States proceedings had already occurred before the English registration proceedings. [1989] 11 EHHR 439 concerned extradition, where the domestic decision would directly expose a person to prohibited treatment. Its reasoning did not govern registration of a pre-existing order from a non-Contracting state. The reference in that case to a possible flagrant denial of a fair trial under article 6 was treated as dicta.
3. Assessment of foreign procedure. English law governs the interests-of-justice enquiry. The court should adopt a broad, non-technical approach and allow for different methods of achieving justice in foreign jurisdictions. Detailed classification under article 6 will usually be unnecessary, although its standards may illuminate the enquiry. The court did not need to decide whether the foreign forfeiture proceedings involved the determination of a criminal charge.
4. Fugitive disentitlement. The court had to consider what occurred both at first instance and on appeal. The foreign doctrine did not automatically make registration unjust. As recognised in [1952] P288 and [1992] 1 WLR 1196, protection of the administration of justice and securing obedience to court orders may justify procedural sanctions. The relevance of [2002] EWCA Civ 774 and the comments in Waite v Waite & Others required a fact-sensitive assessment. Here the appellant was represented, the merits had been substantially considered, and the appellate court had determined important issues, including personal jurisdiction and the basis of her liability as an aider and abettor. The doctrine was used as an effective means of securing compliance, not merely to vindicate judicial dignity.
5. In those circumstances, and having regard to comity and international assistance against crime, registration was in the interests of justice.

• Court of Appeal (Civil Division). On 24 March 2003, the court dismissed the appeal against the registration order. [2003] EWCA Civ 392
• High Court of Justice, Administrative Court. On 12 June 2002, Stanley Burnton J ordered registration of the United States external confiscation order.