David Walbank KC Considers Anonymity Orders in Forfeiture Proceedings by the NCA

Having historically had conduct of many of the most complex cases for all the major fraud prosecution agencies (including as Standing Counsel to the Revenue and Customs Prosecutions Office and Standing Counsel to the Department for Business, Innovation and Skills), David’s work is now almost exclusively for front-rank firms instructing him to defend charges of white-collar fraud.

As well as being the crime correspondent for the premier legal periodical, New Law Journal, commenting on the hottest topics in the criminal justice system in his fortnightly Crime Brief column, David is also the creator and presenter of [CrimeCast.Law] (‘Straight Talking About Crime’), which now hosts more than 250 video case reviews in which he talks directly to camera about recent caselaw and legislation.

Amongst five new videos uploaded to the website this week is David’s video case review of R (Marandi) v Westminster Magistrates’ Court [2023] 2 Cr App R 15. The judgment of the King’s Bench Divisional Court relates to the lifting of an anonymity order and reporting restrictions in forfeiture proceedings brought by the National Crime Agency in respect of a complex money-laundering operation allegedly run by the ruling elite in Azerbaijan.

For free and instant access to the video case review, you can visit [CrimeCast.Law].

David said as follows:

“The facts were that Parvana Feyziyeva, Orkhan Javanshir and Elman Javanshir were all closely related to a man called Javanshir Feyziyev. Parvana was his wife, Orkhan his son and Elman his nephew. They were implicated in a complex money laundering operation alleged to have been run by the ruling elite in Azerbaijan, which was exposed in 2017 when confidential bank documents were leaked.

The National Crime Agency brought forfeiture proceedings against the wife, son and nephew and, in September 2021, another individual called Javad Marandi, who was neither party to nor a witness in those forfeiture proceedings heard that he would nevertheless feature in the evidence in the case and not in a good way. On the evening of Thursday 28 October 2021, the day before the forfeiture hearing was due to begin, he gave the media notice of his intention to apply for an order that he should be referred to in those proceedings only by initials and for an order under section 11 of the Contempt of Court Act 1981, prohibiting the publication of the his name or any information likely to lead to his identification. The grounds of the application were set out in a short witness statement from his solicitor, which exhibited and verified the contents of a letter sent to the NCA that afternoon. The letter described him as a highly successful international businessman with a broad portfolio of lawful business interests in the United Kingdom and elsewhere, which (so it was claimed) were not subject to any current or past investigation by the authorities. The letter also asserted that it had become standard practice for banks, if they became aware of allegations of money laundering, to withdraw banking facilities and said that would have very unfair consequences for Mr Marandi, his businesses and his employees in the UK. When the matter came on for hearing, the District Judge gave a brief extempore judgment, granting the application for anonymity.

In the course of the 10-day forfeiture hearing, an NCA Financial Investigator would neither confirm nor deny whether Mr Marandi was himself under investigation. Judgment was reserved and, on Friday 28 January 2022, the BBC having got wind of the fact that a judgment was to be given by the District Judge on the following Monday, 31 January 2022, they gave notice of an application to set aside the anonymity order. On the Monday, the District Judge did not have time to hear the parties, so his judgment was given in an anonymised form in respect of Mr Marandi’s role. The DJ ruled that more than £5.6 million in accounts held by the respondents at Lloyds Bank and at Rathbones was recoverable property under the Proceeds of Crime Act 2002 and would be forfeited under s.303Z12(4)(a). 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 District Judge was satisfied that there was a significant money laundering scheme in existence in Azerbaijan, Estonia and Latvia. So far as the anonymity order was concerned, he fixed a further hearing and set a timetable and, in due course, written submissions were received on behalf of Mr Marandi himself, the BBC, the Evening Standard, two campaigning groups called ‘Spotlight on Corruption’ and ‘Transparency International UK’ and the National Crime Agency, the latter adopting a neutral stance. On 9 May 2022 the District Judge discharged his earlier anonymity order and Javed Marandi then applied for judicial review.

In handing down his judgment in the Divisional Court, Warby LJ referred to, amongst other cases: Khuja v Times Newspapers [2019] AC 161, Del Campo v Spain (2019) 68 EHRR 27, R (Rai) v Winchester Crown Court [2021] 2 Cr App R 20, R (Javadov) v Westminster Magistrates’ Court [2022] 1 WLR 1953 and to ZXC v Bloomberg LP 2022] AC 1158, the last three of those cases having all been the subject of CrimeCast video reviews uploaded to the website on respectively 25 November 2021, 16 December 2021 and 3 May 2022. Khuja was one of a number of men suspected of involvement in offences of child sex abuse. Del Campo was a teacher accused by a colleague of workplace harassment. Rai was facing trial in the Crown Court on a charge of murder. Javadov was the subject of an application for an account freezing order the man identified only as ZXC was under investigation for overseas corruption but had not yet been arrested or charged.

Other legal materials referred to in the judgments of Warby LJ and Mostyn J included section 3(2) of the Civil Evidence Act 1972; the Practice Guidance (Interim Non-Disclosure Orders); the Magistrates’ Courts (Freezing Orders and Forfeiture of Money in Bank and Building Society Accounts) Rules 2017 and the Criminal Procedure Rules.

Their Lordships then held as follows:

1. Decisions about reporting restrictions are evaluative in nature, involving a judicial assessment and a balancing exercise akin to the exercise of a discretion. A judicial review challenge to such a decision will not succeed unless it is shown that the judge’s approach was wrong in law in a way that undermines his or her conclusions or which is outside the range of decisions properly open to them on the evidence.

2. In the present case the judge correctly identified the legal principles and applied them to the facts as they appeared from the material before him in a fashion that could not be impugned.

3. He was right to begin with the principle that justice should be administered in public and that everything said in court, including names, is reportable.

4. He was also right to apply the test of necessity. The threshold question here was whether allowing the disclosure of Mr Marandi’s name and the consequent publicity would amount to an interference with his right to respect for his private and family life.

5. The next stage was the balancing exercise, evaluating the claimant’s rights against the weighty imperatives of open justice. This required clear and cogent evidence, but in the present case the evidence consisted largely of generalities with nothing about the claimant’s private and family life and the sources of information were not clearly specified.

In a separate judgment, Mostyn J also addressed in detail the procedure to be adopted in the following passage:

‘In summary, it is my clear view that:

(i) An application for a RRO must be accompanied by clear and cogent evidence, which demonstrates that without the order justice could not be done. The evidence must be admissible. A non-expert opinion expressed in a solicitor’s letter is not likely to be worth the paper it is written on.

(ii) Save in situations of great urgency, an application for a RRO should be served no fewer than 3 clear days before the hearing.

(iii) A draft order should be served at the same time.

(iv) It would be good practice to notify the media through PA Media’s Injunctions Applications Service. That service is subscribed to by all the national media (newspapers and broadcasters) with the exception of the Financial Times. If notice has to be served on the FT it needs to be served on it directly.

(v) It would be good practice to permit the press to attend the hearing of the application and to make submissions either through an advocate with rights of audience or in writing.

(vi) Where the evidence is incomplete and findings have not been made, the better course, if the court is satisfied that anonymity should be granted, may be to make a temporary RRO with a return date or other provision for the matter to be reconsidered before finalising the public judgment or shortly following its hand- down.

(vii) The order, whether temporary or final, should delineate its extra-territorial effect and provide for the press and any other affected person to have liberty to apply.

(viii) If the order made is a final order it should provide for an end-date.

It is only by observance of these standards that fairness, and therefore justice, will be afforded to all parties, and to society at large, on an application for an order which would have the effect of derogating from the core constitutional principle of open justice.’

And so, for all those reasons, the judicial review claim was dismissed but the anonymity order was continued, pending an application to the Court of Appeal for permission to appeal. Permission was subsequently refused, the anonymity order was discharged and a revised version of the Divisional Court’s judgment was issued, naming the claimant, Javad Marandi.”