National Crime Agency v GKC (No 2)

Where court proceedings engage the open justice principle, that principle remains the starting point. The applicant for anonymity or reporting restrictions must establish, by clear and cogent evidence, that the derogation is necessary and proportionate. The Article 8 reasoning in ZXC v Bloomberg LP [2022] UKSC 5 assists in assessing the seriousness of privacy interference, but does not reverse the open justice framework or require a compelling-public-interest test for publication. In contested inter partes proceedings concerning an unexplained wealth order and interim freezing order, NCA v Hussain [2020] EWHC 432 (Admin) does not establish a presumption of anonymisation. The court must conduct a fact-specific Article 8 and Article 10 balancing exercise, giving substantial weight to open justice, informed scrutiny of judicial acts and the public interest in identifying principal actors.

The National Crime Agency obtained an unexplained wealth order and associated interim freezing order against GKC without notice. The application was heard in private, and interim anonymisation and reporting restrictions were imposed. In Judgment No.1, the respondent’s application to set aside the orders was dismissed following a public hearing conducted with interim anonymity.

This judgment concerned whether the interim anonymity and reporting restrictions should be discharged after a full inter partes hearing in which media organisations intervened. The respondent relied on Article 8 privacy rights, the investigative nature of the proceedings and the reasoning in ZXC v Bloomberg LP [2022] UKSC 5. The central issue was whether continued anonymisation was necessary and proportionate notwithstanding the open justice principle.

1. Open justice framework. The starting point was the constitutional principle of open justice. Justice is administered in public, court proceedings are generally reportable, and the public is entitled to know who the principal actors are. Any derogation must be exceptional, necessary and supported by clear and cogent evidence. The burden lay on the respondent seeking continued anonymity.
2. Article 8 and ZXC v Bloomberg LP. ZXC v Bloomberg LP [2022] UKSC 5 strongly informed the assessment that naming a person under criminal investigation may cause serious, profound and potentially irremediable reputational harm. It did not concern open justice and did not invert the applicable framework. Article 8 interference remained one element in the ultimate necessity and proportionality assessment.
3. UWO proceedings. The investigative and safeguarding nature of Part 8 proceedings, their early stage and the relatively low suspicion threshold were powerful factors favouring anonymity. They did not create a presumption in favour of anonymisation in contested inter partes proceedings. NCA v Hussain [2020] EWHC 432 (Admin) was principally concerned with without-notice applications and did not govern the later inter partes hearing. The approach was consistent with R (Javadov) v Westminster Magistrates’ Court [2021] EWHC 2751 (Admin), where on-notice account-freezing proceedings were heard in public.
4. Balancing exercise. The court accepted the serious Article 8 interference, the respondent’s age and circumstances, the investigative context and the risk that publicity could undermine effective access to judicial protection. Against that, there was a strong public interest in a full and vivid report of the judicial process, including the respondent’s identity, particularly given the linked and already public overseas proceedings and the ability of clear judgments to promote informed understanding. The balance decisively favoured non-anonymisation.
5. Orders. The anonymity order and reporting restrictions were discharged. The unredacted Glossary and the private judgment were to be released, and Judgment No.3 was to be released, but those steps were suspended pending determination or resolution of any appeal. The respondent was granted permission to appeal on both proposed grounds. She was ordered to pay the NCA’s costs of the hearing, assessed by consent at £57,926.10; there was no order as to the interveners’ costs.

First-instance decision on an application concerning interim anonymity and reporting restrictions in High Court UWO/IFO proceedings. Permission to appeal to the Court of Appeal was granted on both grounds advanced by the respondent.