Reference:  EWHC 587 (Admin)
Court: King’s Bench Division, Administrative Court
Judge: Lord Justice Warby; Mr Justice Mostyn
Date of judgment: 17 Mar 2023
Summary: Reporting restrictions – Article 8 – open justice – Proceeds of Crime Act 2002
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Appearances: Gervase de Wilde (Claimant)
Instructing Solicitors: Farrer & Co
The Claimant had been granted a reporting restriction order (RRO) to prevent him being named in connection with forfeiture proceedings brought by the NCA against several individuals said to be involved in a significant money laundering operation. The Claimant was not a party or a witness in the forfeiture proceedings but had learnt that the NCA intended to make allegations of unlawful conduct against him as part of the case against the respondents. He gave the media notice of his intention to apply for an RRO the evening before the forfeiture application was listed to begin, and the district judge granted the RRO the following day.
Following judgment in the forfeiture proceedings, the BBC made a successful application to lift the RRO. The judge concluded that the Claimant had not been a peripheral figure to the forfeiture proceedings, having been presented with evidence during the proceedings that the Claimant was connected in various ways to the respondents and the activities under investigation. In addition, he held that the Claimant had failed to provide clear and cogent evidence in support of the application for the RRO. The Claimant had asserted that disclosing his name would cause significant personal and business reputational harm but had not provided evidence to support that assertion.
The Claimant brought a claim for judicial review of the judge’s decision.
Whether the judge had erred in law by:
(i) failing to recognise the correct approach, which required carrying out a balancing exercise between the Claimant’s privacy rights on the one hand and the freedom of the press and open justice on the other, having regard to the importance of open justice;
(ii) incorrectly carrying out the requisite balancing exercise by failing to take into account relevant considerations, such as potential harm to the Claimant’s reputation; and
(iii) focusing on the irrelevant issues of the Claimant’s status as a peripheral figure and the absence of clear and cogent evidence of harm that would be caused by the lifting the RRO.
The Administrative Court dismissed the claim for judicial review.
The judge had correctly directed himself on the law. The starting point was the common law principle of open justice. Granting anonymity could only be justified where strictly necessary in the interest of justice. The threshold question was whether allowing disclosure of the Claimant’s name and the consequent publicity would amount to an interference with his privacy rights. The judge had rightly accepted that the threshold test was satisfied. Then, when addressing the balancing exercise, the judge had correctly considered whether it was necessary and proportionate to grant anonymity, as weighed against the importance of open justice. Whether the Claimant had adduced clear and cogent evidence was relevant to that balancing exercise, as the evaluative exercise required close scrutiny of the facts at hand.
Further, the judge had not ignored the question of whether the Claimant’s reputation would be seriously harmed by disclosure of his name; it was self-evident that being associated with money laundering might cause such harm and this was likely one of the central factors that the judge to initially grant the RRO. However, the judge had subsequently identified the Claimant as an individual of importance to the forfeiture proceedings. Although the Claimant had made a general denial of wrongdoing, he had not supported that denial with evidence. The nature and degree of the potential interference into the Claimant’s privacy rights were matters requiring proof.
Finally, the judge had not taken into account irrelevant matters. The judge’s finding as to the Claimant’s status as a person of importance to the forfeiture proceedings was relevant to the degree to which the public interest in open justice extended to the provision of the name in question. Whether the Claimant had adduced clear and cogent evidence was a relevant matter: it was for the Claimant to show why his privacy rights made it necessary to derogate from the principle of open justice.
Both judges also concluded that there had been serious deficiencies in the Claimant’s initial application for an RRO. The notice given to the media was insufficient; the press had been excluded from the initial application for an RRO and were unable to challenge the making of it; and the form of the order was irregular. Accordingly, Mostyn J provided guidance on the proper procedure to be adopted in the future, in respect of RROs in forfeiture applications, contra mundum (or similarly blanket) anonymity orders, and RROs more generally.
This judgment is notable for the useful guidance given by Mostyn J on the correct procedure to be adopted when an individual seeks an RRO in forfeiture applications under the Proceeds of Crime Act 2002, and RROs more broadly.
It also provides a useful illustration of the difficulties that may be faced by an individual seeking an RRO in circumstances where they have not been named as a witness or party to proceedings, let alone been charged with an offence, but have been found to be sufficiently linked to the matter before the court.