Barnette v United States of America

The Court of Appeal considered whether a United States confiscation order could properly be registered in England and Wales under section 97 of the Criminal Justice Act 1988. Section 97 requires that at the time of registration the order is in force and not subject to appeal, that the person received notice of the proceedings where he did not appear, and that enforcement in England and Wales would not be contrary to the interests of justice.

The court held that registration was not contrary to the interests of justice in this case. Although the judge below accepted that, if the European Convention on Human Rights (ECHR) applied to the US proceedings, there were arguable breaches of Article 6 and Article 1 of Protocol 1, those matters did not mean English courts would breach section 6 of the Human Rights Act 1998 by registering the order. The court distinguished Soering and explained that the key question under section 97(1)(c) is whether enforcement would be contrary to the interests of justice judged by English law and with appropriate deference to the procedures of the foreign forum.

The Court of Appeal also approved the lower judge’s conclusion that the US courts’ application of the fugitive disentitlement doctrine and their disposal of several substantive issues did not make registration unjust in all the circumstances. The appeal was dismissed.

The appellant, Mrs Montgomery, and her former husband Mr Barnette became parties to long-running US proceedings arising from alleged fraud on US Government laundry contracts. Mr Barnette had been convicted in the United States and a series of forfeiture/restitution orders were made. A revised confiscation/forfeiture order of 15 November 1995 fixed the liability relevant to enforcement at US$11,767,754 (less specified excluded elements). The United States government sought registration of that order in England under section 97 of the Criminal Justice Act 1988. Stanley Burnton J had ordered registration on 12 June 2002.

Procedural posture: appeal to the Court of Appeal from Stanley Burnton J (Administrative Court judgment of 12 June 2002). The primary legal question on appeal was whether the registration under section 97 was lawful where the US proceedings had been conducted in a manner that, if the ECHR applied to the United States, would have given rise to arguable breaches of Article 6 (and Article 1 of Protocol 1), and where the US Courts of Appeal had dismissed appeals by applying the fugitive disentitlement doctrine.

Issues framed by the court:

• Whether registration under section 97(1) was barred because enforcement would be contrary to the interests of justice, in light of alleged defects in the US proceedings.
• Whether the court, in registering the order, would act unlawfully under section 6 of the Human Rights Act 1998 by exposing a person to enforcement of an order said to be incompatible with Convention rights.

Reasoning and decision: the Court of Appeal held that section 97 required the English court to ask whether enforcement would be contrary to the interests of justice judged according to English law. The Human Rights Act did not operate to prevent the court from exercising its s97 jurisdiction where the statutory preconditions were met. The court distinguished the Strasbourg authority in Soering as involving a direct foreseeable risk of treatment proscribed by Article 3 if extradition were carried out; no analogous direct causal sequence existed here because the impugned conduct in the US had already occurred outside the jurisdiction before the English registration proceedings. The court accepted that the ECHR jurisprudence may be informative but should not be applied in a technical manner to evaluate foreign domestic procedures where the foreign jurisdiction is not a party to the Convention. The Court of Appeal agreed with the judge below that the US courts had in fact addressed many of the substantive issues and that the application of the fugitive disentitlement doctrine did not render registration contrary to the interests of justice in the circumstances of this case. The appeal was dismissed.

Appeal dismissed. The Court of Appeal held that registration of the US confiscation order under section 97 Criminal Justice Act 1988 was not contrary to the interests of justice. The Human Rights Act 1998 (section 6) did not prevent registration where the statutory conditions for registration were satisfied and where the English court, applying English law standards and a broad, non-technical approach to foreign procedure, concluded enforcement was not unjust. Soering was distinguished as inapplicable to the circumstances.

Appeal from the decision of Mr Justice Stanley Burnton (Administrative Court) dated 12 June 2002, which ordered registration of a United States confiscation order under section 97 of the Criminal Justice Act 1988; appealed to the Court of Appeal, Neutral Citation [2003] EWCA Civ 392.