Javad Marandi v Westminster Magistrates Court [2023] EWHC 587 (Admin)
Summary
**Javad Marandi v Westminster Magistrates Court [2023] EWHC 587 (Admin)**
Javad Marandi v Westminster Magistrates Court [2023] EWHC 587 (Admin) concerned a judicial review challenge to a decision by Westminster Magistrates Court to discharge a reporting restriction order that had anonymised the claimant in forfeiture proceedings under the Proceeds of Crime Act 2002 brought by the National Crime Agency. The Divisional Court, comprising Lord Justice Warby and Mr Justice Mostyn, dismissed the claim and held that the judge below had applied the correct legal principles and that his decision to lift the anonymity order was properly open to him.
The NCA had brought civil forfeiture proceedings under section 303Z14 of the Proceeds of Crime Act 2002 against Parvana Feyziyeva, Orkhan Javanshir, and Elman Javanshir, alleging they were participants or beneficiaries of the Azerbaijani Laundromat, a complex money laundering operation. Mr Marandi was not a party to or witness in those proceedings but had some connection with the respondents. On the afternoon of 28 October 2021, the day before the ten-day hearing was due to commence, Mr Marandi gave notice of an intention to apply for a reporting restriction order prohibiting publication of his name or identifying information. His evidence was that the NCA intended to make unfounded allegations of criminal or unlawful conduct against him and that reporting would cause considerable reputational harm. On 29 October 2021, after hearing counsel for Mr Marandi in private and brief submissions from two journalists, District Judge Zani granted the order in terms that Mr Marandi’s name should be replaced by the cipher MNL. The judge held it appropriate and necessary to reasonably and proportionately protect Mr Marandi’s Article 8 rights. On 31 January 2022, after hearing the forfeiture application in public over ten days, the judge gave a detailed judgment ordering forfeiture of over £5.6 million standing to the credit of the respondents, finding that it was recoverable property deriving from a significant money laundering scheme. The judgment contained extensive references to Mr Marandi’s role, including findings that he was the beneficial owner of Avromed Company (Seychelles), an entity which received substantial funds from shell companies central to the laundering scheme and which in turn paid him directly and paid companies he owned. The judge found that Mr Marandi had received some $49 million from the Avromed account and that further sums totalling over $100 million had gone to a company beneficially owned by him.
The BBC, which had received only indirect and very late notice of the original application and had not been heard, applied to discharge the anonymity order. On 29 April 2022 the judge heard submissions from counsel for the BBC, for Mr Bentham of the Evening Standard, and for Mr Marandi. The judge refused to admit late witness statement evidence from JF, a non-party whose family were respondents to the forfeiture proceedings. On 9 May 2022 the judge handed down a judgment in which he discharged the order. He held that Mr Marandi was not a peripheral figure but a person of importance to the main proceedings and that the evidence in support of the application was not sufficiently clear and cogent to satisfy him that it was necessary or proportionate for the anonymity order to remain in place. The judge rejected an argument based on Del Campo v Spain on the footing that it was fact specific and did not trump the need for open justice in UK courts.
Mr Marandi sought judicial review, contending that the judge had committed serious errors of law. By Lord Pannick KC he submitted that the judge had failed to recognise that the applicable principles were those identified in R (Rai) v Winchester Crown Court and specifically that his task was to determine the balance between privacy rights and the freedom of the press and open justice; that the judge had failed properly to carry out the necessary balancing exercise by ignoring the self-evident reputational damage, the unfairness of identifying a non-party who had no opportunity to defend himself, and the fact that what the BBC sought to report had not been disclosed in open court; and that the judge had wrongly focused on whether Mr Marandi was a peripheral figure and on the supposed absence of clear and cogent evidence. Mr Marandi relied on the principles in ZXC v Bloomberg LP regarding reasonable expectations of privacy, on Khuja v Times Newspapers Ltd regarding the circumstances in which anonymity might be justified, and on Del Campo regarding the stigmatising effect of judicial findings made against a non-party who had no opportunity to be heard.
For the BBC, Ms Carss-Frisk KC submitted that the judge had identified and applied the relevant principles. She emphasised that the starting point was the strong principle of open justice expounded in In re S and Khuja and that there had to be clear and cogent evidence to justify a derogation. She submitted that the judge was entitled to focus on whether Mr Marandi was an important figure in the judgment and whether the evidence met the required standard. His finding that Mr Marandi was important was a legitimate one and he was entitled to find that the evidence fell short of being clear and cogent.
The Divisional Court held that the judge had correctly identified and applied the relevant legal principles. Lord Justice Warby noted that decisions about reporting restrictions are evaluative in nature and that the challenge would succeed only if the approach was wrong in law or outside the range of decisions properly open on the evidence. His Lordship held that the judge had properly started from the common law principle of open justice, expounded in Scott v Scott and subsequent authorities including Rai, which applies across all proceedings and holds that any restriction must be based on necessity. The test of necessity applies both under the common law and where the case turns on Article 8 rights. The judge’s language made clear that he was satisfied the threshold test of interference with Article 8 rights was met and that he was undertaking the required Convention balancing exercise by assessing whether the consequences of disclosure would be sufficiently serious an interference that it was necessary and proportionate to derogate from open justice. The requirement that the applicant adduce clear and cogent evidence reflected both the older common law authorities such as Scott v Scott and the modern cases such as JIH v News Group Newspapers Ltd. The judge’s conclusion that the derogation was not shown to be justified was a proper one reached after conducting the necessary balancing process.
Lord Justice Warby rejected the submission that the judge had ignored relevant considerations. It was unreal to suggest that the judge had overlooked the question of reputational harm, which was the starting point for Mr Marandi’s case and must have been one of the reasons for the initial order. The judge had accepted that the threshold of seriousness was crossed. The nature and degree of interference were not, however, self-evident matters requiring no proof; they required evaluation on the basis of the particular facts and evidence adduced. The judge had not treated the forfeiture judgment as a finding of guilt and the public’s ability to distinguish suspicion from guilt was not a matter of law but an issue for the judge to assess. The submission that Mr Marandi’s role was peripheral had been a mantra of the argument below and the judge was required to assess it; he had squarely addressed and legitimately rejected the notion of substantive peripherality. As to procedural unfairness, Mr Marandi’s position was markedly different from that in Del Campo; he had been forewarned, had obtained an anonymity order, and had a full opportunity to press for its continuation including a three-month window to adduce evidence and a half-day hearing. The judge’s conclusion that Del Campo was distinguishable and that naming Mr Marandi would not be procedurally unfair was justified. The argument that weight should attach to the fact that Mr Marandi had not been named in open court pulled itself up by its own bootstraps; if the initial order was unjustified, its mere existence could not justify its continuation. The observations of Lord Sumption in Khuja were not on point because that case concerned the postponement of reporting of matters already known to the public.
Lord Justice Warby further held that the judge had not taken account of irrelevant matters. The question of whether Mr Marandi had a substantively peripheral role bore on the issue identified in Clifford v Millicom Services UK Ltd and went directly to the question identified in Khuja of the degree to which the public interest extends to provision of the name. The judge’s view that Mr Marandi was a person of importance was plainly legitimate and it would be anomalous to grant him anonymity when JF, another non-party, was named. The evidence adduced by Mr Marandi had been thin in the extreme; over at least seven months he had provided almost nothing about his personal or family life and the business evidence consisted largely of generalities. The judge’s exclusion of late evidence from JF was a legitimate case management decision. The judge was entitled to examine whether the evidence was sufficiently clear and cogent and to conclude that it was not.
Mr Justice Mostyn, agreeing, added observations on the procedural failings in the case. His Lordship held that Mr Marandi had been warned in mid-September 2021 that the NCA would make allegations against him but had waited until the afternoon before the first day of the hearing to apply for the order, giving the NCA less than one clear day’s notice and the press in reality none at all. Two journalists had been permitted to make oral submissions only after the hearing was over and without having heard the submissions on behalf of Mr Marandi. The consequence of giving almost the shortest possible notice was that the application was effectively uncontested. This process did not meet the requirements of natural justice. Although the Supreme Court decision in A v BBC established that there is no strict obligation to notify the media before a blanket anonymity order is made, it would nevertheless be good practice to do so. Mr Justice Mostyn held that, absent emergency conditions, three clear days’ notice is the minimum that should be given to the other parties and it would be good practice to notify the media at the same time. Mr Marandi had had more than a month’s warning and should have served the application by 25 October 2021 at the latest. His Lordship further noted that the evidence in support of the application was largely inadmissible lay opinion under section 3 of the Civil Evidence Act 1972 and was not worth the paper it was written on; there was no good reason why proper expert evidence of the consequences for banking facilities could not have been obtained. The order made on 29 October 2021 had not followed the standard wording, contained no liberty to apply, no end date, and no territorial limitation. In Mr Justice Mostyn’s judgment the better course on such an application would be to make a temporary order with provision for reconsideration before or shortly after judgment, as held in XZ v YZ. On the merits, his Lordship held that the initial order should never have been granted and agreed fully with Lord Justice Warby’s exposition of the law and his application to the facts.
In short, the judge below correctly identified the relevant principles governing derogations from open justice, properly conducted the required balancing exercise, was entitled to find that the evidence was insufficient to justify the continuation of the order, and made a decision that was not flawed in law or outside the range properly open to him.
Javad Marandi v Westminster Magistrates Court [2023] EWHC 587 (Admin) concerned a judicial review challenge to a decision by Westminster Magistrates Court to discharge a reporting restriction order that had anonymised the claimant in forfeiture proceedings under the Proceeds of Crime Act 2002 brought by the National Crime Agency. The Divisional Court, comprising Lord Justice Warby and Mr Justice Mostyn, dismissed the claim and held that the judge below had applied the correct legal principles and that his decision to lift the anonymity order was properly open to him.
The NCA had brought civil forfeiture proceedings under section 303Z14 of the Proceeds of Crime Act 2002 against Parvana Feyziyeva, Orkhan Javanshir, and Elman Javanshir, alleging they were participants or beneficiaries of the Azerbaijani Laundromat, a complex money laundering operation. Mr Marandi was not a party to or witness in those proceedings but had some connection with the respondents. On the afternoon of 28 October 2021, the day before the ten-day hearing was due to commence, Mr Marandi gave notice of an intention to apply for a reporting restriction order prohibiting publication of his name or identifying information. His evidence was that the NCA intended to make unfounded allegations of criminal or unlawful conduct against him and that reporting would cause considerable reputational harm. On 29 October 2021, after hearing counsel for Mr Marandi in private and brief submissions from two journalists, District Judge Zani granted the order in terms that Mr Marandi’s name should be replaced by the cipher MNL. The judge held it appropriate and necessary to reasonably and proportionately protect Mr Marandi’s Article 8 rights. On 31 January 2022, after hearing the forfeiture application in public over ten days, the judge gave a detailed judgment ordering forfeiture of over £5.6 million standing to the credit of the respondents, finding that it was recoverable property deriving from a significant money laundering scheme. The judgment contained extensive references to Mr Marandi’s role, including findings that he was the beneficial owner of Avromed Company (Seychelles), an entity which received substantial funds from shell companies central to the laundering scheme and which in turn paid him directly and paid companies he owned. The judge found that Mr Marandi had received some $49 million from the Avromed account and that further sums totalling over $100 million had gone to a company beneficially owned by him.
The BBC, which had received only indirect and very late notice of the original application and had not been heard, applied to discharge the anonymity order. On 29 April 2022 the judge heard submissions from counsel for the BBC, for Mr Bentham of the Evening Standard, and for Mr Marandi. The judge refused to admit late witness statement evidence from JF, a non-party whose family were respondents to the forfeiture proceedings. On 9 May 2022 the judge handed down a judgment in which he discharged the order. He held that Mr Marandi was not a peripheral figure but a person of importance to the main proceedings and that the evidence in support of the application was not sufficiently clear and cogent to satisfy him that it was necessary or proportionate for the anonymity order to remain in place. The judge rejected an argument based on Del Campo v Spain on the footing that it was fact specific and did not trump the need for open justice in UK courts.
Mr Marandi sought judicial review, contending that the judge had committed serious errors of law. By Lord Pannick KC he submitted that the judge had failed to recognise that the applicable principles were those identified in R (Rai) v Winchester Crown Court and specifically that his task was to determine the balance between privacy rights and the freedom of the press and open justice; that the judge had failed properly to carry out the necessary balancing exercise by ignoring the self-evident reputational damage, the unfairness of identifying a non-party who had no opportunity to defend himself, and the fact that what the BBC sought to report had not been disclosed in open court; and that the judge had wrongly focused on whether Mr Marandi was a peripheral figure and on the supposed absence of clear and cogent evidence. Mr Marandi relied on the principles in ZXC v Bloomberg LP regarding reasonable expectations of privacy, on Khuja v Times Newspapers Ltd regarding the circumstances in which anonymity might be justified, and on Del Campo regarding the stigmatising effect of judicial findings made against a non-party who had no opportunity to be heard.
For the BBC, Ms Carss-Frisk KC submitted that the judge had identified and applied the relevant principles. She emphasised that the starting point was the strong principle of open justice expounded in In re S and Khuja and that there had to be clear and cogent evidence to justify a derogation. She submitted that the judge was entitled to focus on whether Mr Marandi was an important figure in the judgment and whether the evidence met the required standard. His finding that Mr Marandi was important was a legitimate one and he was entitled to find that the evidence fell short of being clear and cogent.
The Divisional Court held that the judge had correctly identified and applied the relevant legal principles. Lord Justice Warby noted that decisions about reporting restrictions are evaluative in nature and that the challenge would succeed only if the approach was wrong in law or outside the range of decisions properly open on the evidence. His Lordship held that the judge had properly started from the common law principle of open justice, expounded in Scott v Scott and subsequent authorities including Rai, which applies across all proceedings and holds that any restriction must be based on necessity. The test of necessity applies both under the common law and where the case turns on Article 8 rights. The judge’s language made clear that he was satisfied the threshold test of interference with Article 8 rights was met and that he was undertaking the required Convention balancing exercise by assessing whether the consequences of disclosure would be sufficiently serious an interference that it was necessary and proportionate to derogate from open justice. The requirement that the applicant adduce clear and cogent evidence reflected both the older common law authorities such as Scott v Scott and the modern cases such as JIH v News Group Newspapers Ltd. The judge’s conclusion that the derogation was not shown to be justified was a proper one reached after conducting the necessary balancing process.
Lord Justice Warby rejected the submission that the judge had ignored relevant considerations. It was unreal to suggest that the judge had overlooked the question of reputational harm, which was the starting point for Mr Marandi’s case and must have been one of the reasons for the initial order. The judge had accepted that the threshold of seriousness was crossed. The nature and degree of interference were not, however, self-evident matters requiring no proof; they required evaluation on the basis of the particular facts and evidence adduced. The judge had not treated the forfeiture judgment as a finding of guilt and the public’s ability to distinguish suspicion from guilt was not a matter of law but an issue for the judge to assess. The submission that Mr Marandi’s role was peripheral had been a mantra of the argument below and the judge was required to assess it; he had squarely addressed and legitimately rejected the notion of substantive peripherality. As to procedural unfairness, Mr Marandi’s position was markedly different from that in Del Campo; he had been forewarned, had obtained an anonymity order, and had a full opportunity to press for its continuation including a three-month window to adduce evidence and a half-day hearing. The judge’s conclusion that Del Campo was distinguishable and that naming Mr Marandi would not be procedurally unfair was justified. The argument that weight should attach to the fact that Mr Marandi had not been named in open court pulled itself up by its own bootstraps; if the initial order was unjustified, its mere existence could not justify its continuation. The observations of Lord Sumption in Khuja were not on point because that case concerned the postponement of reporting of matters already known to the public.
Lord Justice Warby further held that the judge had not taken account of irrelevant matters. The question of whether Mr Marandi had a substantively peripheral role bore on the issue identified in Clifford v Millicom Services UK Ltd and went directly to the question identified in Khuja of the degree to which the public interest extends to provision of the name. The judge’s view that Mr Marandi was a person of importance was plainly legitimate and it would be anomalous to grant him anonymity when JF, another non-party, was named. The evidence adduced by Mr Marandi had been thin in the extreme; over at least seven months he had provided almost nothing about his personal or family life and the business evidence consisted largely of generalities. The judge’s exclusion of late evidence from JF was a legitimate case management decision. The judge was entitled to examine whether the evidence was sufficiently clear and cogent and to conclude that it was not.
Mr Justice Mostyn, agreeing, added observations on the procedural failings in the case. His Lordship held that Mr Marandi had been warned in mid-September 2021 that the NCA would make allegations against him but had waited until the afternoon before the first day of the hearing to apply for the order, giving the NCA less than one clear day’s notice and the press in reality none at all. Two journalists had been permitted to make oral submissions only after the hearing was over and without having heard the submissions on behalf of Mr Marandi. The consequence of giving almost the shortest possible notice was that the application was effectively uncontested. This process did not meet the requirements of natural justice. Although the Supreme Court decision in A v BBC established that there is no strict obligation to notify the media before a blanket anonymity order is made, it would nevertheless be good practice to do so. Mr Justice Mostyn held that, absent emergency conditions, three clear days’ notice is the minimum that should be given to the other parties and it would be good practice to notify the media at the same time. Mr Marandi had had more than a month’s warning and should have served the application by 25 October 2021 at the latest. His Lordship further noted that the evidence in support of the application was largely inadmissible lay opinion under section 3 of the Civil Evidence Act 1972 and was not worth the paper it was written on; there was no good reason why proper expert evidence of the consequences for banking facilities could not have been obtained. The order made on 29 October 2021 had not followed the standard wording, contained no liberty to apply, no end date, and no territorial limitation. In Mr Justice Mostyn’s judgment the better course on such an application would be to make a temporary order with provision for reconsideration before or shortly after judgment, as held in XZ v YZ. On the merits, his Lordship held that the initial order should never have been granted and agreed fully with Lord Justice Warby’s exposition of the law and his application to the facts.
In short, the judge below correctly identified the relevant principles governing derogations from open justice, properly conducted the required balancing exercise, was entitled to find that the evidence was insufficient to justify the continuation of the order, and made a decision that was not flawed in law or outside the range properly open to him.