Javad Marandi, R (on the application of) v Westminster Magistrates’ Court

The starting point for a reporting restriction order is the constitutional principle of open justice. Hearings are public and the press may report what occurs, including the names of principal actors. Anonymity is exceptional and must be strictly necessary and proportionate. The applicant bears the burden of establishing that by clear and cogent admissible evidence, assessed against the particular interference with Article 8 rights and the public interest in transparency.

A non-party’s status and substantive importance to the proceedings are relevant. Naming a non-party is not automatically unfair, especially where he was forewarned and had opportunities to seek anonymity and make representations. On judicial review, disagreement with the weight assigned to relevant factors is insufficient absent legal error or a decision outside the permissible range. The claim was dismissed.

The National Crime Agency brought civil forfeiture proceedings under the Proceeds of Crime Act 2002 against members of a family. The claimant, a non-party, obtained an anonymity and reporting restriction order before the hearing because evidence was expected to refer to him. After the forfeiture judgment, the Westminster Magistrates’ Court, on the BBC’s application, discharged the order and permitted reports to identify him.

The claimant sought judicial review, alleging errors in the application of open justice, privacy and procedural fairness principles. He asked the Administrative Court to restore anonymity. The central issue was whether the judge’s evaluative decision was legally flawed or outside the range of decisions open on the evidence.

1. Judicial review dismissed. Reporting-restriction decisions are evaluative. Judicial review does not permit the reviewing court to re-weigh relevant factors. Intervention requires an error of law undermining the conclusion, or a decision outside the range properly open on the evidence. Scrutiny may be more intense where fundamental rights are engaged.
2. The starting point was the common-law principle of open justice, authoritatively reflected in Scott v Scott [1913] AC 417. Hearings are public, what occurs in open court is ordinarily reportable, and this includes the names of principal actors. Any derogation is exceptional, must be strictly necessary and proportionate, and must be established by clear and cogent evidence.
3. The Article 8 analysis required a threshold assessment of whether disclosure would cause an interference reaching a sufficient level of seriousness, followed by a fact-specific balancing exercise. The claimant’s privacy rights had to be weighed against open justice, freedom of expression and the public interest in reporting proceedings. The nature and degree of the interference were not self-evident merely because the allegations were serious.
4. The claimant’s formal status as a non-party and his substantive importance to the forfeiture proceedings were relevant. A non-party is not automatically entitled to anonymity. The court was entitled to find that the claimant was an important figure in the proceedings and that his role was not peripheral. Del Campo v Spain (2019) 68 EHRR 27 was distinguishable because the claimant there had no warning, opportunity to participate or chance to seek safeguards before being named. ZXC v Bloomberg LP [2022] UKSC 5 concerned the initial privacy question before proceedings began; it did not determine the later balance in a public trial.
5. The magistrates’ judge had accepted that disclosure would interfere with Article 8 rights, but was entitled to require evidence of the likely nature and degree of harm. The evidence was thin, and the solicitor’s general assertion about withdrawal of banking facilities did not establish the necessary case. The judge had identified and applied the correct principles. The challenge was therefore a disagreement with weight, not a legal error.
6. Mostyn J added guidance in a separate concurring analysis. In forfeiture proceedings, absent emergency, an RRO application should generally be served at least three clear days before the hearing, with the draft order. Media notification is good practice, although a blanket order under section 11 of the Contempt of Court Act 1981 does not attract a strict advance-notification obligation under section 12(2) of the Human Rights Act 1998. Evidence must be clear, cogent and admissible. Temporary orders should provide for reconsideration, and orders should address territorial effect, liberty to apply and an end-date.

The anonymity order was discharged, subject to continuation pending any application for permission to appeal.

• Westminster Magistrates’ Court: discharged the anonymity and reporting restriction order and permitted the claimant to be identified in reports of the forfeiture proceedings.
• High Court (Administrative Court): dismissed the judicial review claim and lifted the interim anonymity order, subject to any application for permission to appeal. Permission to appeal was subsequently refused by Andrews LJ on 15 May 2023.