The National Crime Agency v Mrs A (Zamira Hajiyeva) (Ruling on Anonymity) [2018] EWHC 2603 (Admin)
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The National Crime Agency v Mrs A (Zamira Hajiyeva) (Ruling on Anonymity) [2018] EWHC 2603 (Admin) concerned an application by the respondent to maintain an anonymity order protecting her identity, that of her husband and that of two lawyers in proceedings concerning the first Unexplained Wealth Order made under the Criminal Finances Act 2017. Mr Justice Supperstone discharged the anonymity order, holding that the public interest in open justice and publishing a full report of these landmark proceedings outweighed the respondent’s concerns.
The National Crime Agency had obtained an Unexplained Wealth Order against Mrs A on 27 February 2018 following a without notice application heard in private. On 24 July 2018, at the start of a hearing to discharge that order, Mr Justice Supperstone refused Mrs A’s application for a private hearing but granted an interim anonymity order protecting the identity of Mrs A, her husband Mr A and two lawyers who had acted for Mr A at trial and on appeal in a non-EEA country. The anonymity order was made on the basis of evidence adduced by Mrs A as to risks faced by those individuals. Before handing down judgment on the substantive application, the court invited submissions on whether the anonymity order should remain in force.
Mrs A relied on evidence concerning her own position and that of her husband. She had been arrested in absentia by authorities in the non-EEA country and declared wanted in connection with an investigation into a bank. She feared unfair criminal proceedings and detention in conditions that would violate Article 3 of the European Convention on Human Rights if she returned. She also feared that disclosure of information she provided to the NCA would be transmitted to authorities in that country, affecting her husband’s position. Mr A had been convicted of fraud and embezzlement from a State-owned bank and sentenced to fifteen years’ imprisonment and ordered to pay approximately $39 million US. Evidence from Lawyer 1 stated that Mr A’s circumstances in detention were extremely precarious, that he had been subjected to atrocious conditions, denied medical care and access to lawyers, and faced direct threats and extortion demands unless he signed over assets. Professor Bowring gave evidence concerning prison conditions and mistreatment of inmates in the non-EEA country. Mrs A’s counsel submitted that events since the July hearing had underlined ongoing risks to Mr A and his legal representatives, and referred to instructions from Mr A’s lawyers as to the extent of those risks. Mr Lewis QC for Mrs A cited the decision in Kalma & Ors v African Minerals Ltd & Ors [2018] EWHC 120 (QB) on the need to protect a person who was not even a witness in the proceedings. He submitted that identification would significantly impact Mrs A’s and her husband’s rights to private and family life under Article 8, and that weighing those rights against the Article 10 rights of the public, the balance came down firmly in favour of maintaining anonymity.
As to the lawyers, evidence indicated they had been subject to disciplinary proceedings by the Bar Association of the non-EEA country for having acted in Mr A’s defence. Lawyer 2 gave evidence that they were both at risk of further reprisals, including suspension from practice and even detention, if their role and evidence in these proceedings became known. Since the July hearing Lawyer 1 had been contacted by the Bar Association and warned he might face further disciplinary proceedings or even disbarment, apparently following Lawyer 1’s emergency application to the European Court of Human Rights concerning Mr A’s treatment and detention, and the publication of an open letter by Mr A’s sister highlighting the oppressive conditions in which Mr A was being held. Mr Lewis also referred to a recent decision of the European Court of Human Rights concerning the non-EEA country, in which a well-known human rights lawyer and civil society activist complained of conditions of detention and failure to provide medical treatment. The Strasbourg court found violations of Articles 5 and 8 but found a violation of Article 3 only in relation to one short period of detention in a pre-trial facility.
Mr Hall QC for the NCA submitted that the anonymity order should be discharged. He referred to press reports in the non-EEA country relating to the July hearing and Mr and Mrs A’s involvement in the proceedings, suggesting that the authorities already had reason to believe court proceedings in the United Kingdom related to assets of Mr and Mrs A.
Mr Justice Supperstone stated that CPR 39.2(4) provides that the court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary to protect the interests of that party or witness. The general rule is that a hearing is to be in public. He referred to the principle of open justice as explained by Lady Hale in R (on the application of C) v Secretary of State for Justice [2016] UKSC 2, encompassing both that justice should be done in open court and that the names of those involved should be public knowledge. An order for anonymity is a derogation from the principle of open justice and an interference with Article 10 rights of the public at large, requiring close scrutiny to determine whether such restraint is necessary, as explained by Lord Neuberger MR in JIH v News Group Newspapers Ltd [2011] EWCA Civ 44.
The judge held that in light of the facts now known to him following the extended hearing and having considered the evidence in detail, he was not satisfied that non-disclosure was necessary to protect the interests of Mrs A or her husband. He was not persuaded that identification would interfere with their Article 8 rights, since interference would only arise if the consequences of identification reached a certain level of seriousness, as explained in Armes v Nottinghamshire County Council [2016] EWHC 2864 (QB). He considered that any interference with their Article 8 rights was unlikely to be severe. Even if identification would interfere with those rights, the question was whether that interference was justified by the requirement of freedom of expression and open justice.
As for Mrs A, the judge found there was no evidence that she would suffer adverse consequences. There was no evidence that she proposed to return to the non-EEA country. He did not consider there was a proper basis for her concerns that information she gave to the NCA would be transmitted to authorities in that country, noting there was no suggestion the NCA would use or disclose information sought otherwise than for the purposes of the statute. He referred to the duties imposed on the NCA as a public body, which included specific processes for deciding whether disclosure to a third party would give rise to an impermissible risk.
Similarly, the judge found no evidence that Mr A would suffer adverse consequences. Since the July hearing Mr A had been served with a considerable amount of material in an apparent new criminal investigation, but there was no evidence that Mr A would be at risk of further criminal proceedings as a result of disclosure of his identity in these proceedings. There was evidence suggesting that the authorities of the non-EEA country were already aware of his connection to property obtained through his criminal activities. Lawyer 1 reported that the authorities had continued to pressure Mr A to sign over various assets. It appeared the authorities already knew that Mr A had assets abroad.
The judge held that the identification of Mrs A and her husband, the non-EEA country involved and the State-owned enterprise that employed him were all matters of very real public interest. On the other hand, the evidence relating to any interference with private and family life was very general and did not support the contention that their identification would put them at risk. He emphasised that in his judgment he had made clear that the requirements relating to politically exposed persons are of a preventive and not criminal nature, and should not be interpreted as stigmatising such persons as being involved in criminal activity. He was satisfied that the public interest in publishing a full report of these proceedings concerning the first Unexplained Wealth Order outweighed any concerns the respondent might have about herself or her husband. He noted there was a clear public interest in the public understanding the legal basis upon which Unexplained Wealth Orders can be applied for and made, and how these provisions operate in practice, and a similar public interest in publishing a full report identifying the individuals, the non-EEA country involved and the basis on which the respondent was found to be a politically exposed person.
As to Mr A’s lawyers, Mr Justice Supperstone accepted that the lawyers had the concerns they expressed and that he should have regard to their subjective concerns. However, he observed that the criticisms Lawyer 1 made of Mr A’s trial were, one would assume, the same criticisms that he and Lawyer 2 made on Mr A’s behalf when appealing for a rehearing and to the Supreme Court against the decision refusing a rehearing. It was therefore not clear why the statements made by Lawyer 1 in these proceedings should have the consequences he feared. The judge noted that the disciplinary proceedings had been taken not by the authorities in the non-EEA country but by the Bar Association, the lawyers’ professional regulatory body. Since the July hearing Lawyer 1 had been contacted by the Bar Association and warned that he might face further disciplinary proceedings or even disbarment, but this followed Lawyer 1’s emergency application to the European Court of Human Rights in connection with Mr A’s treatment and detention and Mr A’s sister publishing an open letter to the authorities highlighting the oppressive conditions in which Mr A was being held. The non-EEA country as respondent to the Strasbourg application would know of that application filed by Lawyer 1. The judge accepted that the evidence of prison conditions and mistreatment of inmates was a matter of considerable concern, but was not persuaded that the treatment of Mr A was likely to worsen as a consequence of the authorities learning of the evidence in these proceedings, nor that there was evidence to support the contention that any action that might be taken against Mr A’s lawyers would lead to their detention by the non-EEA authorities.
Mr Justice Supperstone referred to press reports in the non-EEA country relating to the July hearing and Mr and Mrs A’s involvement in these proceedings. He considered that from the content of those reports the authorities in the non-EEA country would have little reason to doubt that there were court proceedings in the United Kingdom relating to assets of Mr and Mrs A. He held that in the light of the facts now known to him he was not satisfied that there should be any derogation from open justice. The public interest in publishing a full report of the proceedings outweighed any concerns that the respondent might have about herself or her husband. He did not consider that any anonymity order was necessary in the interests of the respondent, her husband or his lawyers. In short, the anonymity order was discharged because the public interest in open justice and understanding how Unexplained Wealth Orders operate outweighed the unsubstantiated concerns about potential consequences of identification for the individuals involved.