The National Crime Agency v Mrs A (Ruling on Anonymity)

An anonymity order is a derogation from open justice and an interference with the public’s Article 10 rights. Under CPR 39.2(4), non-disclosure must be necessary to protect the interests of the party or witness. The court must scrutinise the evidence and balance any sufficiently serious interference with Article 8 rights against the public interest in freedom of expression and open justice. Generalised concerns, without evidence of a real adverse consequence or risk, will not justify anonymity. In proceedings concerning unexplained wealth orders, there may be a strong public interest in identifying the individuals, jurisdiction and relevant state-owned enterprise, so that the legal basis and practical operation of the regime can be understood.

The National Crime Agency had obtained an unexplained wealth order against Mrs A following a private, without-notice hearing. An anonymity order was subsequently made protecting Mrs A, her husband and two lawyers involved in the husband’s criminal proceedings. Before judgment on the discharge application was handed down, the court invited submissions on whether anonymity should continue.

Mrs A relied on alleged risks of criminal proceedings, detention and disclosure of information to the authorities of a non-EEA country. Evidence also concerned the husband’s detention and the position of his lawyers. The NCA, supported by press representatives, sought discharge. The issue was whether continued non-disclosure was necessary under CPR 39.2(4), having regard to Articles 8 and 10 of the Convention and open justice.

1. The anonymity order was discharged. The court was not satisfied that non-disclosure of the identities of Mrs A, her husband or his lawyers was necessary to protect their interests under CPR 39.2(4).

2. Open justice has two related aspects: proceedings should be publicly accessible, and the names of those whose cases are being decided, together with others involved in the hearing, should ordinarily be public knowledge. An anonymity order therefore requires close scrutiny because it derogates from open justice and interferes with the Article 10 rights of the public.

3. Identification would justify protection under Article 8 only if its consequences reached a sufficiently serious level. The evidence concerning Mrs A and her husband was general. There was no evidence that Mrs A would return to the non-EEA country, that information supplied to the NCA would be improperly disclosed, or that identification would expose her husband to further criminal proceedings or other adverse consequences not already known to the authorities.

4. The court accepted that the lawyers had genuine subjective concerns and that prison conditions and mistreatment in the non-EEA country were serious matters. However, the evidence did not establish that publication of their involvement would worsen the husband’s treatment or lead to their detention. The existing publicity also gave the authorities little reason to doubt that proceedings in the United Kingdom existed.

5. The identities of Mrs A and her husband, the non-EEA country and the state-owned enterprise concerned were matters of real public interest. The public interest in a full report of the first unexplained wealth order, including the legal basis for the order and the basis on which Mrs A was treated as a politically exposed person, outweighed the asserted private and family-life concerns.