The Queen (on the application of Suleyman Javadov and Izzat Khanim Javadov) v Westminster Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Mr Justice Johnson |
| Judgment Date | 29 September 2021 |
| Neutral Citation | [2021] EWHC 2393 (QB) |
| Docket Number | Case No: CO/913/2020 |
| Court | Queen's Bench Division |
[2021] EWHC 2393 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE VICE-PRESIDENT COURT OF APPEAL (CRIMINAL DIVISION)
( Lord Justice Fulford)
and
Mr Justice Johnson
Case No: CO/913/2020
and
and
James Lewis Q.C. and Bart Casella (instructed by Banks Kelly Solicitors) for the Claimants
Andrew Bird Q.C. and Tom Rainsbury (instructed by the Civil Litigation Department of the National Crime Agency) for the 1 st Interested Party
The Defendant was not present and was unrepresented.
The 2 nd Interested Party represented himself in person.
Hearing date: 29 June 2021
The Vice-President:
The Facts
The claimants are nationals of Azerbaijan who have lived in London for at least the last decade. The second claimant has been granted British Citizenship. On 31 July 2018 the National Crime Agency (“NCA”) applied ex parte for nine Account Freezing Orders (“AFO/AFOs”) at Westminster Magistrates' Court in respect of bank accounts held by the first claimant (at Santander, Coutts and Lloyds). The hearing was held in private and without notice. Following the grant of the applications on 31 July 2018, the first claimant indicated to the NCA (on 24 August 2018) that he wanted “ to cooperate” with the authorities. An enforcement officer can apply in the Magistrates' Court for an AFO if he or she has reasonable grounds for suspecting that money held in an account is recoverable property or is intended by an person for use in unlawful conduct (section 303Z1 of the Proceeds of Crime Act 2002 (“ POCA”).
In a letter dated 7 September 2018, the NCA notified both claimants that two similar applications were to be made in respect of bank accounts held by the second claimant (at the Metro bank and Barclays). No response was received, and no application was made in advance for the hearing to be in private. The two AFOs against the second claimant were granted on 12 September 2018, following a hearing in open court. The second claimant was not present and was unrepresented.
Each of the 11 AFOs was granted for a period of six months. Against both applicants it was alleged that the NCA had reasonable grounds for suspecting that the funds held in these accounts were recoverable property. Each of the 11 AFOs was granted for a period of six months.
On 23 November 2018, prior to the expiry of the AFOs, the NCA wrote to the claimants giving notice that applications would be made “ to extend” the AFOs in relation to eight accounts relating to the first claimant (two accounts had been merged) and the two accounts relating to the second claimant. They were, in matter of fact, applications for new orders. Copies of the applications and the notice of the hearing to be held on 10 December 2018 were sent to the claimants at their United Kingdom home addresses. On 27 November 2018 the second claimant tried to contact the relevant financial investigator from the NCA (Mr Quarrelle), indicating she had received the paperwork. There was a conversation between Mr Quarrelle and the first claimant on the following day, during which he repeated his willingness to cooperate with the authorities.
On 10 December 2018, the ten AFOs were granted by Westminster Magistrates' Court for a period of 12 months, expiring on 9 December 2019. The hearing was in open court; the claimants were not present and they were unrepresented. No request was made that the application should be heard in private.
On 19 November 2019 (three weeks, therefore, before the ten AFOs expired), the NCA contacted Westminster Magistrates' Court to arrange a listing for a contested hearing of the applications that were to be made for fresh orders. This followed correspondence with the solicitors for the claimants who had indicated they would oppose any application for an “ extension”. The applications were listed for 2 December 2019 with sufficient time set aside. The claimants were informed of this date by letter dated Friday 22 November 2019 and there was no suggestion that the hearing was to be held in private. The applications were filed on Monday 25 November 2019.
On Friday 29 November 2019 the NCA received a letter sent as part of an email (timed at 1.31 pm) from the claimants' solicitors, the full text of which is as follows:
Dear Sirs,
ReRe: National Crime Agency v [Mr and Mrs J]
Hearing date: 2 December 2019 at Westminster Magistrates' Court
1. We write further to previous correspondence and on behalf of [Mr and Mrs J] (“our clients”).
2. Thank you for your email enclosing 2 x applications for variations (extensions) to AFO's and appendices on Monday 25 November 2019 at 15:33; and the skeleton argument on Thursday 28 November 2019 at 17:16. We can confirm safe receipt.
3. We have previously repeatedly asked the NCA to indicate its intentions upon the AFO's expiring on 10 December 2019, well in advance of the hearing, to afford our clients an opportunity to respond in a timely manner.
4. We have also requested early disclosure of the documents in support including those obtained from production orders; and the pre-interview disclosure, which should have been served on our clients when they attended the voluntary interview and made full comment without legal representation on 29 July 2019.
5. Despite these efforts, we have only received the written application in support of the extension of the AFO's at 15:35 on Monday 25 November 2019, less than one week before the intended hearing. The applications contain various documents in support. We submit that this is insufficient notice to properly respond to the NCA's application.
6. The NCA has had ample time in which to conduct its investigation at the expense of our clients' accounts remaining frozen. It has already had the benefit of an extension without any opposition from our clients. However, we are also mindful of the fact that the AFO's cannot be in force for more than 2 years, much of which has already lapsed.
7. Accordingly, we will not oppose the NCA's application for further time on the following basis:
a. We/our clients have not had sufficient notice to consider and respond to the NCA's application; or make arrangements to instruct counsel to do so.
b. Consenting to the NCA's application for an extension of time is not taken as an admission or acceptance of any of the allegations or claims made against our clients.
c. The NCA confirms by way of return that it will request a private hearing in which to make its application; and will not publicise nor disclose the applications or any ancillary documents to journalists or members of the public. As the NCA is aware, there is a risk of adverse publicity against our clients which will cause substantial reputational damage to our clients at a time where the NCA is at an early investigative stage and has not proven its case against our clients, nor received our clients' defence position.
8. We would be grateful for confirmation of the above and request that a copy of this letter is placed before the Magistrates.
Yours faithfully, Banks Kelly
Therefore, it was indicated that the applications would be unopposed on the suggested basis, inter alia, that the NCA was to confirm by return that it would request a private hearing and it was asked to place a copy of the letter before the court. The justification for the request that that hearing should be in private was, therefore, that, at this early investigative stage and in advance of any proven case or indication of any defence, the NCA was aware of a risk of adverse publicity against the claimants which would cause substantial reputational damage.
The NCA responded on the same day by way of email, timed at 5.50 pm, contending that there was no statutory basis for the hearing to be heard in private. The NCA referred to section 121(4) of the Magistrates' Court Act 1980 (“MCA”) (see [20] below). The NCA invited the claimants' solicitors to identify the statutory basis for the request for a private hearing and noted “[y] ou are, of course, entirely at liberty to make representations to the Court at the Hearing, in regard to it being held in private”. The claimants did not respond to this communication. They did not attend the hearing on Monday 2 December 2019, nor were they represented.
Given its relevance to the second of the Grounds for Judicial Review, it is to be noted at this stage that District Judge Goldspring indicated that he had read the letter of 29 November 2019 (received at 1.31 pm) along with the NCA's response, as just set out. The judge is recorded (according to the note taken by Mr Shelton from the NCA during the hearing) as having observed “ if they want to make assertions they should be here to make representations”. The hearing took place in open court.
The AFOs were granted for six months (expiring on 1 June 2020).
The Issues
On 10 February 2021 Swift J granted permission to proceed with this application for judicial review on the basis of the Grounds set out by the claimants in their Amended Statement of Facts and Grounds, namely:
“(1) Whether under the relevant rules of procedure which apply to proceedings under chapter 3B of the Proceeds of Crime Act 2002, it is possible for a Magistrates' Court to sit in private to hear applications such as those before the Defendant on 2 December 2019 (Ground 1);
(2) Whether the decision that was made by DJ Goldspring on 2 December 2019 rested on a false premise that the Claimants had consented to a public hearing (Ground 2);
(3) Whether assuming the Magistrates' Court had power to sit in private, the decision to proceed in public was...
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