Government of the United States of America v Barnette and another

The House of Lords dismissed the appellant's challenge to registration under section 97 of the Criminal Justice Act 1988 of a United States confiscation order. The central legal issues were whether registration would be contrary to the interests of justice and whether doing so would be incompatible with the appellant's rights under Article 6 of the European Convention on Human Rights. The court held that Article 6 is territorially limited and that any indirect effect in the enforcement context requires a flagrant denial of fair trial rights; that exceptional test was not met here. The court treated the US fugitive disentitlement doctrine as a rational judicial response to non‑compliance and concluded that the appellant had received adequate notice and opportunity to participate in the US proceedings and had actively sought to evade the forfeiture judgment. Accordingly registration was not contrary to the interests of justice.

The appellant was the recipient of 800 shares transferred by her then husband, Larry Barnette, who was later convicted in the United States of fraud and related offences. The US courts held that the United States had title to the shares and ordered forfeiture; subsequent orders assessed a monetary sum after finding contempt for non‑compliance and ordering forfeiture or payment. The appellant left the United States, renounced US citizenship and relocated to the United Kingdom, and failed to comply with discovery orders. The United States Court of Appeals declined to entertain the appellant's appeal on the basis of the fugitive disentitlement doctrine.

The domestic proceedings:

• The respondent sought registration in England under section 97 of the Criminal Justice Act 1988 to enforce the US confiscation order. The Administrative Court (Stanley Burnton J) held that, if the US proceedings were in a Convention state, Article 6 would apply and required certain guarantees; the Court of Appeal (Lord Woolf CJ) found registration would not be contrary to the interests of justice and distinguished the Strasbourg decision in Soering.
• Before the House of Lords the principal questions were (i) whether registration would directly or indirectly engage Article 6 ECHR and (ii) whether enforcing the US order would be contrary to the interests of justice under section 97.

Reasoning:

• The House examined the territoriality principle and Strasbourg jurisprudence (notably Soering and Pellegrini) and accepted that an indirect effect of Convention rights is possible but limited to exceptional cases involving a flagrant denial of fair trial rights.
• Pellegrini was treated as distinguishable because of the special Concordat context in Italy; Soering and subsequent authorities require a virtually complete denial or nullification of Article 6 rights to engage a Convention state's responsibility by enforcement action.
• The court found that the fugitive disentitlement doctrine, while not providing all Article 6 safeguards, is a rational means of securing compliance and not a flagrant denial of justice. The appellant had had opportunity to participate in the US proceedings and the US courts had found active conduct to evade the judgment.
• Accordingly the House concluded registration under section 97 would not be contrary to the interests of justice and would not breach the appellant's Convention rights.

Appeal dismissed. The House held that registration of the US confiscation order under section 97 Criminal Justice Act 1988 would not be contrary to the interests of justice and would not amount to a breach of Article 6 ECHR because the indirect effect doctrine requires a flagrant denial of fair trial rights, which was not established; the US fugitive disentitlement doctrine was a rational response to non‑compliance and the appellant had adequate notice and opportunity to participate.

Appeal from the Court of Appeal, [2003] EWCA Civ 392; earlier Administrative Court decision: [2002] EWHC 1113 (Admin). The underlying US proceedings included orders of the US district court (orders of 18 August 1995 and 15 November 1995) and dismissal of the appeals by the US Court of Appeals on 20 November 1997 under the fugitive disentitlement doctrine.