Update 16 May 2023: The Court of Appeal has backed a ruling that the BBC and Evening Standard should be allowed to name a man allegedly linked to a money laundering case.
The news outlets have as a result named businessman and Conservative Party donor Javad Marandi as a “person of importance” in proceedings linked to the “Azerbaijani Laundromat” investigation, although he denies any wrongdoing and has not been sanctioned in any way.
The BBC described the win as a “milestone for freedom of the press amid growing privacy laws in the courts”.
A spokesman for the businessman told the BBC: “Mr Marandi is deeply disappointed at the court’s decision to lift reporting restrictions, knowing the reputational damage that is likely to follow.”
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Original story 3 April 2023: The BBC and Evening Standard have won a major open justice case that has resulted in a judge setting out good practice for serving reporting restriction orders on the press.
The BBC and the Evening Standard home affairs editor Martin Bentham both objected to an order that allowed a man named in court proceedings linked to the 2017 “Azerbaijani Laundromat” investigation to keep his name secret.
Two High Court judges have now dismissed an attempt by the man to launch a judicial review against the decision to drop his anonymity order. He remains anonymous, however, while he has the opportunity to appeal.
The man was to be named by the National Crime Agency during a forfeiture trial in October 2021 against three members of a family who were accused of profiting from “dirty money” from the “Azerbaijan laundromat” scheme uncovered by the Organized Crime and Corruption Reporting Project (OCCRP) and media partners including The Guardian, Barron’s and Le Monde in 2017.
A judge decided in January last year that Parvana Feyziyeva, the wife of Azeri tycoon Dr Javanshir Feyziyev, their son Orkhan and nephew Elman Javanshir should forfeit £5.7m to the NCA.
The “highly successful international businessman” who objected to being named was not one of the people on trial but had some connections with the Feyziyev family and was to be accused of “criminal or unlawful conduct” by the NCA as part of its case.
Despite having known this a month before the October 2021 hearing, he submitted his intention to apply for a reporting restriction order only the night before and it was distributed to news organisations via the PA wire, and separately to the Financial Times and Sky News.
The application was ultimately granted following a hearing held in private in the absence of the media. The Standard’s Bentham and Koos Couvée, senior reporter at ACAMS moneylaundering.com, later had the chance to put their case but had not heard the earlier arguments.
The original judge granted the reporting restriction order, which was later lifted after the BBC decided to apply to get rid of it as the forfeiture judgment was handed down.
One of the cases the businessman had tried to use to back up his right to privacy was the now well-known Bloomberg v ZXC case which last year saw the Supreme Court rule that a person (in that case a businessman) under criminal investigation cannot be named by the media before being charged.
The man in this case argued he had a stronger expectation of privacy than ZXC because he had not even been interviewed on suspicion of any wrongdoing.
Philip Deeks, a financial investigator for the NCA, had refused to confirm or deny to the court in the original hearing whether the man was subject to an ongoing investigation.
However, the media’s case was that open justice should be the starting point and that the man had failed to prove publicity would seriously harm his private life.
Jude Bunting KC, representing the BBC, told the High Court in a hearing last year that any restriction on reporting should be “strictly necessary and justified by clear and cogent evidence”. According to the latest judgment, he argued: “This case involved a topic of high public interest. The proceedings stemmed from investigative media reporting and reports of the proceedings would make an important contribution to public understanding of the subject matter.”
Bunting and the Standard’s Bentham, acting as an interested party, submitted that the public would understand an allegation against the businessman did not amount to guilt.
At a later hearing in relation to the judicial review attempt, Monica Carss-Frisk KC, for the BBC, emphasised the public interest in reporting cases of this kind, buttressed by the fact it was “only revealed by the work of investigative journalists”.
The man had also argued he was only a “peripheral” figure in the case being heard – but a judge later found he was a “person of importance”. Meanwhile, Lord Justice Warby, hearing the judicial review attempt, said: “It cannot be argued and, to be fair, it has not been suggested, that it is always unfair to name a non-party.”
Lord Justice Warby also said: “It was for the claimant to show why his privacy rights mattered so much that a derogation from the open justice principle was necessary to give them proper effect. The specifics of the likely harm were by no means self-evident… At least seven months passed between the time the claimant got to know that he was likely to be named and the date of the hearing in April 2022. By the end of that hearing the claimant himself had provided no evidence at all.”
Mr Justice Mostyn, sitting with Lord Justice Warby, set out what he considered should be good practice for giving notice of potential reporting restrictions to the media, saying in this case they had, “to all intents and purposes, had no notice at all” as they were not told until the night before.
He called the procedure for deciding the initial reporting restriction “utterly bizarre” and said it was “effectively uncontested. Allowing the press to make submissions after the hearing was over does not amount to much of a contest.”
He added: “It is not as if this was one of those cases where the evidence disclosed intimate personal information which the claimant could justifiably wish to withhold from the media. I do not understand why the press were not able to attend the hearing and were only allowed to make oral submissions after it was over.”
And he said the original reporting restriction should not have been granted due to “procedural unfairness as well as a distinct lack of merit”.
Mr Justice Mostyn’s best practice summary of how reporting restriction applications should be made:
- With “clear and cogent evidence” that demonstrates justice could not be done without the order
- With no fewer than three days’ notice
- Notifying the media through PA Media’s alert service (and, separately, the Financial Times)
- Permitting the press to attend the hearing and make submissions either in person or in writing
- If evidence is incomplete, make a temporary order instead of a permanent one so it can be reconsidered before or shortly after a public judgment is handed down
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