A victory for open justice as MNL's Judicial Review fails
28/03/2023
The case of The King (on the application of MNL) v Westminster Magistrate’s Court concerns a Judicial Review application by MNL, who is an international businessman who was the subject of serious allegations during proceedings for forfeiture of assets under the Proceeds of Crime Act.
The proceedings were brought against three defendants by the National Crime Agency (“NCA”).
MNL was not one of the defendants or witnesses in the proceedings, but became aware that pejorative references were likely to be made in relation to him during them, so with concerns for his reputation, he made an application for anonymity.
The application was made under S.11 Contempt of Court Act 1981, with the aim of prohibiting the publication of the MNL’s name, or any information likely to lead to his identification in connection with the proceedings.
Whilst two publishers objected to the application, the NCA did not oppose the application, and the representatives for the defendants in the Proceeds of Crime Act proceedings “in effect” supported MNL’s application for anonymity.
The core element of MNL’s application was that naming him would be an unjustifiable interference with his reasonable expectation of privacy and his Article 8 Right to Privacy. District Judge Zani heard representations in private and granted an anonymity order “to reasonably and proportionately protect the Article 8 rights of MNL”.
The Proceeds of Crime Act proceedings were therefore heard in October 2021 without MNL being identified. Before District Judge Zani handed down judgment in those proceedings on 31st January 2022 the BBC became aware of the hearing and made an application to discharge the anonymity order.
The issue could not be resolved at such short notice, so the judgment was also handed down without MNL being identified, but a hearing date for the application to discharge the reporting restriction was listed for 29th April 2022.
During the hearing, District Judge Zani heard representations from the media, and ultimately decided to discharge the anonymity order. In coming to that decision, the starting point was the historic decision of Scott v Scott [1913], which contains the proposition that “the general rule of the common law is that justice must be administered in public at hearings which anyone may attend within the limits of the court’s capacity and which the press may report”.
District Judge Zani then considered two fundamental questions:
Firstly, is MNL a peripheral figure in the Proceeds of Crime Act proceedings? His conclusion was that in light of the submissions he had considered, MNL was not a peripheral figure and was actually a person of importance in the main proceedings because he had featured directly and indirectly on a number of occasions in the NCA’s case.
Secondly, has MNL provided “clear and cogent” evidence in support of the application for anonymity? His conclusion on this point was that no, MNL had not done so. The Judge pointed to MNL’s failure to provide evidence to the court which would have provided a clearer idea of the potential effect of discharging the anonymity order.
District Judge Zani was therefore satisfied that it was no longer necessary or proportionate for the order to remain in place.
Dissatisfied with the outcome, MNL then applied for the decision to be Judicial Reviewed. This is a process by which the lawfulness of decisions of public bodies can be reconsidered by Judges in the High Court. In doing so, MNL argued that District Judge Zani had failed to recognise the applicable principles from case law, and failed to carry out the necessary balancing exercise between open justice and privacy, and in particular did not take into account:
- The self-evident truth that identifying MNL would have a very damaging impact on his personal and professional reputation; and
- The unfairness in publishing MNL’s identity when he was not even party to the Proceeds of Crime Act proceedings.
MNL also argued that the two questions on which District Judge Zani focused were irrelevant.
Lord Justice Warby and Mr Justice Mostyn heard the Judicial Review application, in which the BBC, Martin Bentham of the Evening Standard, and the NCA, were interested parties. Both senior judges agreed that MNL should not succeed in the Judicial Review and that District Judge Zani’s decision to lift the anonymity order should stand.
In coming to their conclusions, both Judges made interesting points which are worthy of note.
Firstly, Lord Justice Warby made reference to the case of ZXC, which is the case which established (along with Cliff Richard and Sicri) that someone who is the subject of a police investigation has a reasonable expectation of privacy in relation to that fact until they are charged with a crime. Lord Justice Warby noted that ZXC “is a case about the initial step in the [analysis of the principle of freedom of expression against the right to privacy], in cases where no legal proceedings had begun; it has no bearing on the balance to be struck between privacy rights and the public interest in transparency and open justice when a person features in a public trial”.
ZXC has become the key case to which Claimants refer when they are seeking anonymity or injunctions based on the right to privacy, but Lord Justice Warby is very clear that the cases to which ZXC is relevant are not those which concern a public trial, even if the person concerned is not the defendant in the trial.
Secondly, Mr Justice Mostyn notes in his judgment that the initial hearing regarding the imposition of the anonymity order in October 2021, was held in private in the absence of the press. Whilst he states that he does not know how this came about, he reiterates that hearing the application without the press was “an exceptional course to take and could only be justified if the application could not fairly be heard in the presence of the press”.
Thirdly, Mr Justice Mostyn goes on to say that in ordinary circumstances, the media will offer undertakings, or limited reporting restrictions can be imposed, in relation to confidential evidence which forms part of the reporting restriction hearing.
This is a useful point to note when challenging reporting restrictions, or making representations as to why hearings in relation to their imposition should be conducted with the media in attendance.
So, this case has a complex history and originated from Proceeds of Crime Act proceedings, but it is none the less an important victory for open justice and freedom of expression, with some very useful guidance being provided by two of the country’s top media judges.