Written by Gemma Rose for Lexis Nexis PSL: R (on the application of MNL) v Westminster Magistrates' Court [2023] EWHC 587 (Admin)
Corporate Crime Analysis
MNL was not a party to the contested account forfeiture proceedings but was likely to be named during the course of evidence given at the ten day hearing. Initially a reporting restriction order (RRO) was granted but following an application from the press after judgment in the contested proceedings, it was discharged. MNL applied for judicial review of that decision. The order had allowed him to be referred to as MNL during proceedings and prevented the press reporting any details which might lead to his identification. The court refused MNL’s claim for judicial review stating that the judge had not erred in his assessment of the legal principles nor had he taken into account irrelevant considerations. The starting point is the common law principle of open justice, any movement away from this should be necessary and proportionate supported by ‘clear and cogent evidence.’
What are the practical implications of this case?
This case reiterates once again the important principle of open justice. The judgment makes clear that this is the starting point, highlighting the need for the press and public to have an awareness of what takes place within the walls of the courtroom.
It is apparent from the decision here that there continues to be an onus on those applying for reporting restrictions to provide evidence and strong justification for the court to depart from those key principles. Just like considerations across other areas of law when dealing with the balancing exercise and ECHR rights, the key word here is weight. It may be important to ask what arguments will carry the greatest weight. Lord Justice Warby referred to the evidence put before the court on the claimant’s behalf as being too general and containing ‘almost nothing about [his] personal life’ (para [45]). It is clear that cases of this nature will come down to an assessment of their precise circumstances against the legal principles.
The other practical assistance this case brings is clarity on the procedural requirements for the making of such an application. Although not required, it was highlighted as being good practice to notify the media of an application of this kind. This will be something practitioners may need to consider when deciding whether it is in the interest of their client to make an application for a reporting restriction. Such considerations would clearly vary on a case by case basis and the judgment directs practitioners to the Master of the Rolls’ Practice Guidance on Interim Non-Disclosure Orders of 2011 [2012] 1 WLR 1003.
What was the background?
The underlying account forfeiture proceedings concerned the ‘Azerbaijani Laundromat’, a complex money laundering operation utilised and operated by the ‘ruling elites’. The National Crime Agency’s (NCA’s) case was that the respondents, family members of Javanshir Feyziyev (JF), were participants or beneficiaries of this enterprise and as such the funds in their accounts were recoverable property. As part of their case against the respondents, the NCA alleged that MNL was involved in the unlawful conduct.
The claimant (MNL) was not a party to those proceeding but discovered that he was likely to be named in the contested hearing which was due to commence on 29 October 2021. On the evening of 28 October 2021 the claimant gave the media notice of an intention to apply for an RRO which was to include; the claimant’s name being withheld from the public during the proceedings, for the letters MNL to be substituted and for an order under section 11 of the Contempt of Court Act 1981 prohibiting the publication of the claimant’s name or any information likely to lead to his identification. The order was sought to prevent reputational harm to the claimant.
A short witness statement was provided by the claimant’s solicitor, attaching a letter sent to the NCA that afternoon. The claimant’s position was that these allegations were unfounded and he was likely to suffer considerable reputational harm. The letter stated that he was a ‘highly successful businessman’ with a ‘broad portfolio of business interests in this country and elsewhere’. It was argued that to use his name would breach his Article 8 rights and reliance was placed on ZXC v Bloomberg LP [2020] EWCA Civ 611.
The NCA confirmed that it would not refer to the claimant’s name during the proceedings but stated that the matter would need to be dealt with by the judge the next day. Submissions were heard in private on 29 October 2021, without the media. A proposed order was provided to the press at lunchtime and subsequently two members of the press made representations to the court. The judge concluded that in all the circumstances it was ‘appropriate and necessary’ for the order to be made ‘to reasonably and proportionately protect the Article 8 rights of MNL’.
The forfeiture proceedings commenced and during the course of the evidence reference was made to MNL’s role and his connection with the companies said to be part of the money laundering enterprise. Judgment was handed down on 31 January 2022 and findings were made that a total of £5,630,994.19 held in the respondents’ accounts was recoverable property. The press learnt that the hearing on 31 January 2022 was due to take place and gave notice on 28 January 2022 of their intention to apply to set aside the RRO.
The application could not be dealt with at the hearing and so a timetable was set down. Skeletons were submitted but no further evidence was filed, the NCA adopted a neutral stance and the application was heard on 29 April 2022. Judgment was handed down on 9 May 2022 and the District Judge ordered that the RRO was discharged. The judge was not satisfied the claimant had provided ‘clear and cogent evidence’ in support of the application and he was ‘no longer satisfied that it was necessary or proportionate for the anonymity order to remain in place’. The claimant then sought judicial review of that decision.
What did the court decide?
Decision on the judicial review
The court refused the application, confirming the common law principle of open justice was the starting point, as per Scott v Scott [1913] AC 417 and more recently R (Rai) v Winchester Crown Court [2021] EWCA Civ 604. It was said that it would have been irrelevant had the NCA consented to an anonymity order, as parties cannot waive or give up the rights of the public. It was also said that it was never always unfair to name a non-party.
Warby LJ set out (at para [43]) that the District Judge was correct to identify and apply a test of necessity when considering whether to derogate from that starting point. The question in this case was whether the claimant’s Article 8 rights would be infringed were his name to be published given the publicity likely to follow. This was said to require proof the effects would reach a ‘certain level of seriousness’, as per ZXC and R (on the application of Javadov) v Westminster Magistrates Court [2021] EWHC 2751 (Admin). The next stage is then considering the balancing exercise between the claimant’s case and the ‘weighty imperatives of open justice’. It was in that context that the District Judge was correct to address whether ‘clear and cogent evidence’ had been adduced.
Warby LJ held (at para [44]) that while it is self-evident and can be inferred that associating a person with money laundering is likely to cause serious harm to their reputation, the nature and degree of the interference is not. It was said those matters would require proof and an assessment of weight which was to be evaluated by the judge on the basis of the particular facts and circumstances. He stated that the District Judge had not taken into account irrelevant matters nor had he ignored the relevant considerations. Ultimately it was said that the application came down to a disagreement regarding the weight attributed to the relevant factors by the District Judge.
The procedural requirements for such an application
Comment and criticisms were made regarding the procedure for the initial hearing of the application, in particular the exclusion of the media and the late notice given. It was said by Mr Justice Mostyn that the process ‘did not meet the requirements of natural justice’ (para [56]) and concerns were raised about the strategic decision that appeared to have been made to give the parties and press the shortest notice possible. Mostyn J stated the CPR and Practice Guidance should be broadly applicable to these applications where Part II of the Magistrates’ Court Act 1980 and the Magistrates’ Courts Rules 1981 are silent.
Courts Rules 1981 are silent. In summary he set out the following:
- an application for an RRO should be accompanied by clear and cogent evidence,
- which must be admissible and demonstrate the need for such an order
- save in urgent cases an application for an RRO should be served, with a draft of
- the order sought, no fewer than 3 days before the hearing
- it is good practice to notify the media through PA Media’s Injunctions Applications
- Alert Service.
- it is also good practice to permit the press to attend the hearing and make
- submissions through an advocate or in writing
- where evidence has yet to be heard or findings have yet to be made a better
- course of action may be to make a temporary RRO (if satisfied anonymity should
- be granted) with a return date or a provision for the matter to be re-considered
- before or shortly after judgment is handed down
- any order (whether final or temporary) should deal with extra-territorial effect and
- provide for liberty to apply for the press or other affected parties
- if the order is a final order an end date should be specified
This case provides important guidance on issues of privacy in forfeiture proceedings under the Proceeds of Crime Act 2002, as does the case of R (on the application of Javadov) v Westminster Magistrates Court [2021] EWHC 2751 (Admin) referred to within the judgment. Gemma Rose acted for the National Crime Agency, along with Andrew Bird KC, during the initial application from the press in that matter, with Andrew Bird KC also representing the NCA in the underlying forfeiture proceedings and the Judicial Review.
Gemma Rose is a barrister practising in criminal, proceeds of crime, family and extradition proceedings. She is recognised in the Legal 500 as a Rising star in her proceeds of crime and asset forfeiture work.
Case details
- Court: King's Bench Division, Administrative Court (London)
- Judges: Lord Justice Warby and Mr Justice Mostyn
- Date of judgment: 17 March 2023
This analysis was first published on Lexis®PSL on 6th April 2023 and can be found
here (subscription required).
