Practice and Procedure


PUBLISHED March 24, 2003

It was in the interests of justice to register under s.97 Criminal Justice Act 1988 an external confiscation order made against the appellant in 1995 by the United States District Court in Florida. The appellant's challenge to registration for non-compliance with the European Convention on Human Rights was rejected since the United States was not a Convention country.Appeal from a judgment of Stanley Burnton J ordering the registration under s.97 Criminal Justice Act 1988 of an external confiscation order made in 1995 by the US District Court in Florida relating to a sum of over $7 million. A US citizen ('B') controlled two companies that carried out laundry contracts for the US government in Germany. B was alleged to have defrauded the US government of some $15 million in relation to those contracts. Part of the proceeds were passed to a Panamanian company ('ODSA'). Before B was indicted for fraud he transferred 800 of the 900 shares in ODSA to his then wife ('M'). B was convicted of a number of offences and in 1984 he was ordered to forfeit the ODSA shares or pay $7 million to the government in restitution, whichever was the greater. B paid $7 million and did not comply with orders for discovery as to the value of the shares. In 1995 the US court found that the value of the ODSA shares at the relevant time was over $11 million, so that B owed the US government a further $4.2 million plus interest, and made an order against B and M for payment of that sum. The US Court of Appeal dismissed appeals by B and M under the fugitive disentitlement doctrine. M appealed from registration of the 1995 confiscation order arguing that it was contrary to the interests of justice within s.97(1)(c) of the 1988 Act because the confiscation order would have been made in contravention of Art.6 of the European Convention on Human Rights if the Convention had applied in the US and that registration therefore contravened s.6 Human Rights Act 1998.HELD: (1) Because of the terms of s.97(1)(c) of the 1988 Act and its requirement that registration had to be in the interests of justice it was difficult to see how the court could contravene s.6 of the 1998 Act. If a person against whom an order was sought had not had a fair trial then it was to be expected that a court would decide that it would not be in the interests of justice to enforce the order. (2) Even if the conduct of the US District Court or Court of Appeal was inconsistent with the standards required by Art.6 of the Convention, the decision to register under s.97 did not give rise to any breach of Art.6 because any conduct which could be in breach of the Convention had already taken place in the US prior to the English proceedings (Soering v United Kingdom (1989) 11 EHRR 439 considered). (3) There were difficulties in seeking to judge the procedures of a court in a jurisdiction to which the Convention did not apply by applying Art.6. The jurisprudence under Art.6 was not irrelevant in indicating what was to be regarded as in the interests of justice. But whether a criminal charge was involved was a technical issue under Art.6 which it was not necessary to decide. It was highly artificial to evaluate what the US courts regarded as civil proceedings by directly applying the approach to Art.6 that would be adopted in a Convention country. The appeal could be determined by applying the language of s.97(1)(c). (4) It was in the interests of justice to register the confiscation order. Although the US Court of Appeal applied the fugitive disentitlement doctrine, it determined a number of issues on the merits which went a long way to justifying the making of the confiscation order. What was or was not in the interests of justice had to be determined according to English law and the English courts should adopt a broad non-technical approach when assessing the practice and procedure of foreign jurisdictions. Judged against the background of the standards of justice required by Art.6 the judge was right to register the order.Appeal dismissed.

[2003] EWCA Civ 392