Government of the United States of America (Respondents) v. Barnette and another (Appellants)

A court may enforce a judgment from a non-Convention state without directly assuming responsibility under article 6 for the foreign proceedings. The Convention is territorial and does not generally require contracting states to impose its standards on other states.

Responsibility may nevertheless arise indirectly where enforcement exposes a person to the consequences of a flagrant denial of a fair trial. That exceptional threshold requires a virtually complete denial or nullification of article 6 rights. A foreign appellate court’s rational refusal to entertain an appeal as a sanction for persistent evasion of its orders did not meet that threshold. The circumstances also did not make registration of the confiscation order contrary to the interests of justice under section 97 of the Criminal Justice Act 1988.

A United States district court ordered the appellant and her former husband to pay the value of shares representing proceeds of fraud, together with interest and expenses. The United States Court of Appeals dismissed their appeals under the fugitive disentitlement doctrine because they had evaded court orders and placed assets beyond the court’s reach.

The United States Government applied to register the confiscation order in England under section 97 of the Criminal Justice Act 1988. Stanley Burnton J granted registration in [2002] EWHC 1113 (Admin). The Court of Appeal upheld that decision in [2003] EWCA Civ 392; [2003] 1 WLR 1916.

The appeal concerned whether registration directly or indirectly engaged article 6 of the Convention and whether enforcement would be contrary to the interests of justice.

1. Appeal dismissed unanimously. Lord Carswell delivered the leading speech. Lord Steyn, Lord Slynn of Hadley, Lord Hoffmann and Lord Clyde agreed that the appeal should be dismissed for his reasons. Lord Clyde reserved his opinion on whether the fugitive disentitlement doctrine would itself have violated article 6 if employed in a Convention state.

2. Per Lord Carswell, article 6 was not directly engaged. Article 1 of the Convention limits the Convention’s reach, notably on territorial grounds. Registration did not make the English court responsible for the conduct of proceedings in a non-Convention state, and the English registration hearing itself met article 6 requirements. Pellegrini v Italy was distinguishable because Italian law and the Concordat specifically required the Italian courts to verify the fairness of the ecclesiastical proceedings before recognising the judgment.

3. Per Lord Carswell, article 6 may have indirect effect where a contracting state enforces a foreign judgment. Responsibility arises only in exceptional circumstances involving a flagrant denial of a fair trial. The unfairness must amount to a virtually complete denial or nullification of article 6 rights, comparable to a fundamental breach. This stringent rule, derived from Soering and confirmed by Ullah, Razgar, Einhorn and Tomic, applies to enforcement as well as extradition or expulsion.

4. Per Lord Carswell, the threshold was not satisfied. The fugitive disentitlement doctrine was a rational means of securing obedience to court orders where other sanctions could not be enforced. The appellant had participated at first instance, submitted an appellate brief, had counsel at the appeal and made submissions on disentitlement. The United States court had also found that she actively hid assets and evaded the forfeiture order.

5. Per Lord Carswell, those circumstances also meant that registration was not contrary to the interests of justice under section 97(1)(c) of the Criminal Justice Act 1988. The statutory conditions were satisfied, and the confiscation order could be registered and enforced.

1. House of Lords: In [2004] UKHL 37, unanimously dismissed the appeal and affirmed registration of the United States confiscation order.

2. Court of Appeal: In [2003] EWCA Civ 392; [2003] 1 WLR 1916, dismissed the appeal. It held that registration was not contrary to the interests of justice.

3. Administrative Court: In [2002] EWHC 1113 (Admin), Stanley Burnton J held that the appellant had adequate notice and that the order could be registered under section 97 of the Criminal Justice Act 1988.