The National Crime Agency v Mrs A
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 03 October 2018 |
| Neutral Citation | [2018] EWHC 2603 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/754/2018 |
| Date | 03 October 2018 |
[2018] EWHC 2603 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
THE HONOURABLE Mr Justice Supperstone
CO/754/2018
APPEARANCES
Mr J Hall QC and Mr T Rainsbury (instructed by The National Crime Agency) appeared on behalf of the Applicant.
Mr J Lewis QC and Mr B Watson (instructed by Gherson) appeared on behalf of the Respondent.
RULING ON ANONYMITY
On 27 February this year, I made an Unexplained Wealth Order against Mrs A, following a without notice application by the NCA and a hearing in private in accordance with the practice direction for civil recovery proceedings.
On 24 July, at the start of the hearing of an application to discharge the order Mr James Lewis QC, who appears on behalf of Mrs A, applied for an order that the hearing of the application be in private.
I did not accept that the hearing should be heard in private for reasons I then gave. However, Mr Jonathan Hall QC, on behalf the NCA, accepted that on the evidence adduced by Mrs A it was appropriate for an anonymity order to be made to protect the identity of certain individuals involved in these proceedings.
The anonymity order I made, to remain in force until further order, protected the identity of the respondent, that is Mrs A, her husband, Mr A, and the two lawyers who acted on his behalf at his trial and on his appeal.
Before handing down judgment, I have invited the parties to address the issue as to whether the anonymity order should remain in force.
I have received written submissions from the parties, and I have heard oral submissions from Mr Lewis and Mr Hall. I have also heard submissions from representatives of the Press.
Mr Lewis invites me to continue the order and Mr Hall invites me to discharge it.
In support of his submission that the order should continue Mr Lewis refers to the evidence of Mrs A as to her position. The personal position of Mrs A featured more at the July hearing than it has done today. As for her personal position, it was said she is at risk of unfair criminal proceedings and thereafter of detention in conditions which it is said would violate Art.3 ECHR if she were ever to return to the non-EEA Country. The NCA accept that Mrs A was arrested in absentia by the authorities for the non-EEA Country and declared ‘wanted’ in connection with avoiding the investigation into the bank.
Mrs A also fears the effects of any disclosure on her husband's position if any information she provides to the NCA was disclosed to the authorities in the non-EEA Country. It is Mr A's position that Mr Lewis focuses on. In this regard, Mr Lewis refers me to the decision in Kalma & Ors v African Minerals Ltd & Ors [2018] EWHC 120 (QB) and the need to protect a person who is not even a witness in these proceedings.
Mr Lewis submits that identification of Mrs A and of her husband would have a significant impact on her right to a family and private life under Art.8 ECHR.
Mr Lewis submits that weighing the Art.8 rights of Mrs A and her husband against the Art.10 rights of the public, the balance comes down firmly in favour of maintaining anonymity.
Further, relying on the evidence of Lawyer 1, Mr Lewis submits that Mr A's current circumstances in detention are extremely precarious. He has, he says, been subjected to atrocious conditions; he has been denied access to medical care (and as a result his health has deteriorated); he has been denied access to lawyers and he faces direct threats and attempts at extortion unless he signs over various assets. It is Lawyer 1's assessment that there would be real risks to Mr A if his name were to be published in association with these proceedings. In support of this submission, Mr Lewis prays in aid the evidence of Professor Bowring as to prison conditions in the non-EEA Country and mistreatment of inmates.
Mr Lewis submits that events in the non-EEA Country since the July hearing have underlined the ongoing risks to Mr A and his legal representatives. Mr Lewis refers to instructions taken from Mrs A and Mr A's lawyers since that hearing and what they say as to the extent of any ongoing risks to Mr A and themselves.
Mr Lewis has referred me to a recent decision of the European Court of Human Rights concerning the non-EEA Country where the applicant is a well-known human rights lawyer and civil society activist. He complained of his conditions of detention and a failure to provide him with medical treatment in breach of Art.3 of the Convention. The court found that he been deprived of his liberty in the absence of reasonable suspicion of criminal offences, and therefore there had been a violation of Art.5. There had also been a violation of Art.8, in that there was no lawful reason for conducting a search of his home. However, the court found no violation of Art.3 in relation to his medical treatment or in relation to certain periods of detention, but only that there was a violation in relation to one...
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The Queen (on the application of Suleyman Javadov and Izzat Khanim Javadov) v Westminster Magistrates' Court
...life.” 45 This evaluation will be rooted in the facts of the particular case. 46 Supperstone J in NCA v Mrs A (Ruling on Anonymity) [2018] EWHC 2603 (Admin) observed when considering an application for an anonymity order that: “There are two aspects to the principle of open justice, as Lad......