The King (on the application of MNL) v Westminster Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Lord Justice Warby,Mr Justice Mostyn |
| Judgment Date | 17 March 2023 |
| Neutral Citation | [2023] EWHC 587 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/01822/2022 |
and
[2023] EWHC 587 (Admin)
Lord Justice Warby
and
Mr Justice Mostyn
Case No: CO/01822/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Pannick KC, Jessica Boyd KC and Gervase de Wilde (instructed by Farrer & Co) for the Claimant
Monica Carss-Frisk KC and Jude Bunting KC (instructed by in-house legal team) for the First Interested Party
Tom Rainsbury (instructed by in-house legal team) for the Third Interested Party
Hearing date: 8 March 2023
APPROVED JUDGMENT
Introduction
This is a claim for judicial review of a decision of the Westminster Magistrates' Court to lift an order anonymising the claimant in connection with a claim for forfeiture of assets brought by the National Crime Agency (the NCA) against three other individuals under the Proceeds of Crime Act 2002. The main issue is whether the judge erred in law when resolving a conflict between the imperatives of open justice and the rights of a non-party to respect for his private life.
The claimant was neither a party nor a witness in the forfeiture proceedings, but he does have some connections with the respondents to those proceedings. Before the hearing began, having learned that prejudicial references to him were likely to be made and fearing the reputational consequences, he applied for an anonymity order. The District Judge made such an order, heard the forfeiture proceedings and gave a public judgment in favour of the NCA which referred to the claimant but did not name him. Thereafter, on the application of the BBC the judge discharged his earlier order. The claimant challenges the judge's decision as flawed in law. He contends that we should set aside the decision of the judge, re-make the decision and restore the anonymity order.
The initial anonymity order
The forfeiture proceedings were brought against Parvana Feyziyeva (Parvana), Orkhan Javanshir (Orkhan) and Elman Javanshir (Elman). They are all members of the family of Javanshir Feyziyev (JF). Parvana is his wife, Orkhan his son, and Elman his nephew. The NCA's case was that the respondents were participants in or beneficiaries of the “Azerbaijani Laundromat”, a “complex money-laundering operation operated by Azerbaijan's ruling elites” which had been “exposed” in 2017 by the Organized Crime and Corruption Reporting Project (OCCRP) on the basis of leaked banking documents. From that starting point, the NCA had undertaken investigations that led to the proceedings against these respondents.
The forfeiture proceedings were listed for hearing before District Judge (Magistrates Court) Zani to begin on Friday 29 October 2021 with a 10-day time estimate. In or before September 2021 the claimant learned that JF and his family were involved in proceedings brought by the NCA. In the second half of September 2021, he was shown the NCA's case summary. On the evening of Thursday 28 October 2021 he gave the media notice of an intention to apply the following day for a reporting restriction order (RRO). Notice of the application was given by email to the Press Association's alerts service, and to the Financial Times (who do not use that service) and Sky News.
The order sought provided for the claimant's name to be withheld from the public in the proceedings before the court; for references to the letters MNL to be substituted for all purposes in the proceedings; and for an order under s 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 in connection with the proceedings.”
The basis for the application was set out in a short witness statement from the claimant's solicitor, Mr Pike, dated 28 October 2021 which exhibited and verified the contents of a letter he had sent to the NCA that afternoon. Mr Pike said he understood that the NCA was making allegations of criminal or unlawful conduct against the claimant as part of its case against the respondents. The claimant's position was that the allegations against him were “without any foundation” and unless a RRO was made these allegations would be reported which was highly likely to cause considerable reputational and consequential harm to the claimant. The claimant asserted that his use of exchange houses to transfer legitimate and lawfully acquired funds from his business activities in Azerbaijan out of the country was not in any way illegal and gave rise to no legitimate suspicion.
The letter exhibited to the statement outlined the claimant's personal situation and his status as a “highly successful international businessman” with a “broad portfolio of business interests in this country and elsewhere”, which were said to be lawful and not the subject of any current or past investigation by authorities. It was asserted that it was wholly unnecessary to include the claimant's name in the proceedings and that this would be a breach of his rights under Article 8 of the Convention. Reference was made to the decision of the Court of Appeal in ZXC v Bloomberg LP [2020] EWCA Civ 611, [2021] QB 28 ( ZXC) that a person who has come under suspicion by an organ of the state has, in general, a reasonable expectation of privacy in relation to that fact and in relation to an expressed basis for that suspicion. Mr Pike wrote that “we do not consider that when the court is invited to conduct the balancing exercise, that there can be any real public interest sufficient to justify his identification against a third party.” The letter maintained that it was now “standard practice” for banks to withdraw banking facilities upon reading of allegations of money laundering, which would have very substantial unjustified consequences for the claimant, his UK businesses and UK employees within them.
At about 8:20pm on 28 October 2021 the NCA confirmed by email that it would not refer to the claimant's name during the forfeiture proceedings but said that the matter would have to be dealt with by the judge the next day. Some of the application documents were emailed to the judge during the morning of 29 October 2021. The draft order was sent during the lunchtime adjournment. A written skeleton argument was submitted by Leading and junior Counsel for the claimant, whom the judge then heard in private, in the absence of the media. The core submission, reflecting the letter relied on in the evidence, was that publicity would represent an unjustifiable interference with the claimant's reasonable expectation of privacy and his rights under Article 8 of the Convention. The proposed order was then provided to members of the press so they could consider it and make representations, which two of them did: Martin Bentham, Home Affairs Editor of the Evening Standard and Koos Couvée, Senior Reporter with ACAMS MONEYLAUNDRERING.COM.
The judge gave a brief extempore judgment. He noted that MNL was not a respondent nor had the NCA brought proceedings against him in any court. He identified the concerns of MNL as expressed in Mr Pike's witness statement. He noted that the detailed submissions of the press on the need for open justice had included criticisms of the lack of detail provided in support of the application; that the NCA had sent an email stating that they were not opposing the application; and that Counsel for the respondents “in effect” supported the application. He concluded that in all the circumstances it was “appropriate and necessary” for an order to be made in the terms sent to him by email “to reasonably and proportionately protect the Article 8 rights of MNL”.
There followed a public hearing of the forfeiture proceedings over ten days in public but subject to the restrictions I have mentioned. The judge received copious documentary evidence as well as oral evidence from witnesses who included Philip Deeks, an Accredited Financial Investigator for the NCA. His evidence included reference to the claimant, and the claimant's role in connection with companies that were said to be part of the money laundering activities alleged by the NCA. At one point Mr Deeks was asked whether the claimant was the subject of an ongoing investigation which he declined to confirm or deny. The respondents chose not to give or adduce any evidence of their own but to rely on cross-examination and submissions from their Leading Counsel. The hearing concluded on 12 November 2021, when the judge reserved judgment.
The forfeiture judgment
On 31 January 2022, the judge gave judgment in open court. He held that a total of £5,630,994.19 standing to the credit of the respondents in certain accounts with Rathbones and Lloyds Bank was recoverable property and ordered that it be forfeited pursuant to s 303Z12(4)(a) of the Proceeds of Crime Act. Freezing orders in respect of the balance of the monies held in the accounts were discharged and those sums were released to the respondents. The reasons for these conclusions were set out in a detailed written judgment in which the judge said he was “entirely satisfied that there was a significant money laundering scheme in existence in Azerbaijan, Estonia and Latvia at the relevant time” from which the respondents had benefited.
The judge's key findings for present purposes were as follows.
(1) The cornerstone of the scheme was the formation of an Azerbaijani company called Baktelekom along with two UK limited liability partnerships called Hilux and Polux. At all times these entities were paper or shell companies. They had no genuine independent existence. They filed no accounts; had no staff; and had no office premises. Their only function was to...
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