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United States of America v Barnette & Anor
Factual and Procedural Background
The Appellant’s former husband (“Third Party”) was convicted in The State in 1984 of large-scale fraud and related offences, including breaches of the Racketeer Influenced and Corrupt Organisations Act. He was ordered to pay restitution of US $7 million and to forfeit 900 shares in “Company A,” which had been used to channel the fraudulent proceeds.
Shortly before indictment, Third Party had transferred 800 of those shares to the Appellant. United States courts held that, under RICO, the transfer was void as against the Respondent Government and ordered forfeiture of the shares or their value. After protracted litigation, a District Court order of 18 August 1995 (re-issued on 15 November 1995) fixed the Appellant’s joint liability at approximately US $11.7 million plus costs.
The Appellant, who had left Third Party, relocated to The City in 1992, renounced her U.S. citizenship and later obtained citizenship of another state. She resisted U.S. discovery orders and, with Third Party, appealed the contempt and forfeiture orders. In 1997 the U.S. Court of Appeals dismissed her appeal under the “fugitive disentitlement doctrine,” holding that her refusal to obey court orders and her departure from the jurisdiction justified denying appellate review.
The Respondent Government applied in England to register the U.S. confiscation order pursuant to section 97 of the Criminal Justice Act 1988. A 1997 restraint order was upheld in earlier proceedings. The High Court (Judge Stanley Burnton) and the Court of Appeal ordered registration, rejecting the Appellant’s contention that enforcement would be contrary to the “interests of justice” and incompatible with Article 6 of the European Convention on Human Rights (“ECHR”). The present appeal is to the House of Lords.
Legal Issues Presented
- Whether registering and enforcing the U.S. confiscation order under section 97(1)(c) of the Criminal Justice Act 1988 would be “contrary to the interests of justice.”
- Whether such registration would breach Article 6 ECHR because the U.S. Court of Appeals refused to hear the Appellant’s appeal under the fugitive disentitlement doctrine.
- Whether Article 6 is engaged directly (requiring the English court to ensure foreign proceedings satisfied Convention standards) or indirectly (because registration would expose the Appellant to the consequences of an alleged flagrant denial of a fair trial abroad).
Arguments of the Parties
Appellant's Arguments
- Had the fugitive disentitlement doctrine been applied in a Convention state, it would have breached Article 6; therefore an English court cannot lawfully give effect to the resulting order (Human Rights Act 1998, s. 6).
- Relying on Soering v United Kingdom and Pellegrini v Italy, the Appellant contended that either (a) the English court must itself verify Article 6 compliance before enforcement (direct engagement) or (b) enforcement would indirectly violate Article 6 by perpetuating a flagrant denial of justice.
- Consequently, registration would be “contrary to the interests of justice” under section 97(1)(c).
Respondent Government's Arguments
- The confiscation order was in force, final, and the Appellant had notice; registration therefore satisfied section 97(1)(a)–(b).
- Article 6 was not engaged or, if engaged, there was no flagrant denial of justice; the fugitive disentitlement doctrine is a legitimate sanction for contempt.
- On the facts, it was not contrary to the interests of justice to register the order.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Government of the United States of America v Montgomery [2001] UKHL 3; [2001] 1 WLR 196 | Earlier proceedings upholding a related restraint order and describing background litigation. | Provided factual context; confirmed validity of restraint orders leading to registration application. |
| Ashingdane v United Kingdom (1985) 7 EHRR 528 | Article 6 requires appellate courts to consider appeals on their merits. | Cited by lower court to show that a Convention state could not have applied fugitive disentitlement. |
| Poitrimol v France (1993) 18 EHRR 130 | Similar Article 6 principle regarding absent appellants. | Same purpose as Ashingdane. |
| Soering v United Kingdom (1989) 11 EHRR 439 | Extradition may breach Convention where removal exposes person to flagrant Article 3 or, exceptionally, Article 6 violations. | Appellant relied on analogy; Court distinguished as involving Article 3 and future, not past, breaches. |
| R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 3 WLR 23 | Clarified “foreign” versus “domestic” cases and “flagrant denial” threshold for indirect Article 6 effect. | House classified the present matter as a “foreign case” requiring proof of a flagrant denial of justice. |
| Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471 | Example of “domestic” treatment cases. | Cited to contrast with the present “foreign” scenario. |
| Bensaid v United Kingdom (2001) 33 EHRR 205 | Further illustration of “domestic” category. | Same contextual use as above. |
| Pellegrini v Italy (2002) 35 EHRR 44 | Domestic courts enforcing foreign (Vatican) judgments must verify Article 6 compliance under a concordat. | Distinguished; depended on special concordat obligations absent here. |
| Drozd and Janousek v France and Spain (1992) 14 EHRR 745 | Concurring opinion recognising potential state responsibility for enforcing foreign judgments obtained in breach of Article 6. | Referred to show theoretical basis but emphasised “flagrant breach” requirement. |
| Einhorn v France (ECtHR, App No 71555/01, 16 Oct 2001) | Extradition may raise Article 6 issues only where there is a “flagrant denial of justice.” | Cited as authority for “exceptional” nature of indirect Article 6 engagement. |
| Tomic v United Kingdom (ECtHR, App No 17837/03, 14 Oct 2003) | Reconfirmed the “flagrant denial” threshold in expulsion context. | Supported same threshold here. |
| R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27; [2004] 3 WLR 58 | House of Lords approval of the indirect-effect doctrine and “flagrant denial” test. | Used to reinforce the high bar the Appellant had to meet. |
Court's Reasoning and Analysis
1. Direct engagement of Article 6 rejected. The Convention is territorial; the proceedings under challenge occurred in a non-Convention state. Citing Pellegrini, the Appellant argued the English court had to examine U.S. procedure, but Judge Carswell held that Pellegrini turned on a unique concordat obliging Italian courts to verify fairness. No equivalent obligation exists here.
2. Indirect engagement considered. The House accepted, following Soering, Ullah, and related authorities, that enforcement of a foreign order might violate Article 6 only if the foreign proceedings amounted to a “flagrant denial of justice”—effectively a nullification of core fair-trial rights.
3. No flagrant denial found. The fugitive disentitlement doctrine, though not Convention-compliant, is a rational contempt sanction aimed at securing obedience to court orders. The Appellant had notice, filed briefs, and was represented by counsel; her own non-compliance prompted the sanction. These facts fell well short of the “flagrant” threshold.
4. Interests of justice under section 97. Given the Appellant’s participation, her deliberate attempts to conceal assets, and the legitimacy of the U.S. contempt findings, enforcing the confiscation order was not contrary to the interests of justice.
Holding and Implications
APPEAL DISMISSED.
The House of Lords affirmed registration of the U.S. confiscation order. The decision confirms that English courts will enforce foreign criminal-confiscation judgments unless enforcement would perpetuate a flagrant denial of Article 6 rights. No broader precedent was set beyond clarifying the high threshold for indirect Convention breaches when registering foreign orders.
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