SULEYMAN JAVADOV AND IZZAT KHANIM JAVADOV (R on the application of) v WESTMINSTER MAGISTRATES’ COURT

A magistrates’ court may hear an application for an account freezing order in private where the application is made without notice under section 303Z1(4) of the Proceeds of Crime Act 2002. The power is necessarily implied because public notice could frustrate forfeiture. An on-notice application may also be heard in private where sufficiently strong, fact-specific justification exists, having regard to open justice and Convention rights.

Open justice remains the ordinary rule. Embarrassment, humiliation or generalised reputational harm will ordinarily be insufficient. The applicant must provide evidence of consequences reaching the required level of seriousness and the court must balance Articles 8 and 10 proportionately. An anonymity order may be a more proportionate remedy than conducting the entire hearing in private.

The claimants challenged the decision of Westminster Magistrates’ Court to hear in public the National Crime Agency’s applications for fresh account freezing orders. They argued that the court lacked power to sit in private, proceeded on the false premise that they had consented to a public hearing, acted irrationally in refusing privacy, and failed to give adequate reasons.

The applications concerned accounts frozen under Part 5, Chapter 3B of the Proceeds of Crime Act 2002. The claimants had been notified of the hearing but did not attend or make an application to the magistrates for privacy. The central issues were whether the court had power to sit in private and whether the decision to proceed in public was unlawful.

The claim was dismissed in its entirety. The court held that a magistrates’ court has power to hear an account freezing order application in private.

1. Section 121(4) of the Magistrates’ Courts Act 1980 requires a complaint to be heard in open court, subject to enactment to the contrary. Section 303Z1(4) of the Proceeds of Crime Act 2002, which permits an application without notice where notice could prejudice forfeiture, constitutes such an enactment. The ability to hear the application privately is necessarily implied; otherwise the without-notice procedure could be substantially undermined.
2. The same conclusion was supported by the approach in NCA v Simkus [2016] EWHC 255 (Admin), while the different procedural framework applicable in NCA v Hussain [2020] EWHC 432 (Admin) was material.
3. For an on-notice application, privacy remains exceptional. The court must examine the particular facts, give proper regard to open justice and fairness, and assess any interference with Articles 8 and 10 of the Convention under section 6 of the Human Rights Act 1998. Embarrassment or generalised reputational damage is insufficient without evidence of sufficiently serious consequences.
4. The claimants had not made a proper application for a private hearing and had supplied only a bare assertion of substantial reputational damage. The magistrate was entitled to proceed in public. There was no false premise that the claimants had consented to publicity, no Wednesbury unreasonableness, and no procedural failure arising from the brevity of the reasons.

An anonymity order may, where justified by evidence and necessity, provide a more proportionate means of protecting Convention rights than holding the whole hearing in private. The reporting restriction imposed by the earlier order was lifted.

High Court (Queen’s Bench Division, Divisional Court): judicial review claim dismissed; the magistrates’ court had power to sit in private, but no error of law, fact, irrationality or inadequate reasoning was established.