Open justice vs privacy rights in NCA investigations and UWO cases

The recent judgment in National Crime Agency v GKC (no 2) [2026] EWHC 929 confirms the limitations of the reasonable expectation of privacy clarified in ZXC v Bloomberg LP [2022] UKSC 5.

This case concerns an application to lift an anonymisation order protecting the identity of an individual studying in the UK who was subject to an Unexplained Wealth Order (UWO) obtained by the National Crime Agency (NCA). Although the individual had remained anonymous in the UWO proceedings, the court was asked to decide whether the public could be told the individual’s identity. The individual sought continued anonymity, while the NCA and media interveners (BBC, The Times, Associated Newspapers and The Telegraph) argued for open justice and publication.

The court ultimately lifted the anonymisation order.

Anonymity and unexplained wealth orders

The background to this case involves a UWO (and an interim freezing order). UWOs form part of an investigative used by the NCA in civil recovery investigations. They are not decisions/judgments of wrongdoing, but are an investigative tool. In this case, the UWO related to a university student living and studying in the UK, in respect of several bank accounts owned by her. An important piece of context was the respondent's links (via her father and uncle) to a large-scale Singaporean money laundering scandal.

Open justice and anonymity

The open justice principle is the general rule that the administration of justice must be done in public, with the public and media having the right to attend all court hearings and report on them. Any restriction on this principle must be exceptional and based on necessity. Importantly, the burden is on the party seeking the restriction or derogation to show that it is necessary on the basis of "clear and cogent" evidence. Exceptions to this rule, specifically in relation to UWO cases, include matters such as national security or confidential information or a private hearing being necessary to protect the interests of a child.

What ZXC does (and does not) decide

This judgment in NCA v GKC (no 2) discusses the ZXC decision in some detail. In the case of ZXC, the Supreme Court held there is a legitimate starting point in misuse of private information claims that a person has a reasonable expectation of privacy in information relating to a criminal investigation prior to charge. This is deemed to fall within the scope of the protection of private life under Article 8 of the European Convention of Human Rights. In ZXC, Bloomberg had published details that a corporate CEO was under investigation, derived from a confidential letter, and the claimant succeeded at all levels.

The Court in ZXC confirmed that assessing a misuse of private information involves a two‑stage test:

(i) a reasonable expectation of privacy; and

(ii) if established, a balancing against Article 10 ECHR freedom of expression rights – and emphasised that the expectation of privacy at stage (i) is generally strong in the pre‑charge context.

This was held not to be a novel rule, but the culmination of a consistent line of authority, underpinned by strong public policy concerns about unfair and often irreparable reputational damage. ZXC was not an open justice case: open justice becomes decisive only once a person is charged, at which point the criminal process is engaged and the information is essentially public.

Why the anonymity argument failed in the UWO proceedings

The court’s analysis proceeded on the basis that ZXC informs but does not displace open justice where court proceedings are involved. The judgment begins by reaffirming the central lessons from ZXC:

• courts must confront the real-world effects of publicly identifying someone as being under criminal investigation; and
• publication will ordinarily cause reputational harm that interferes with Article 8 ECHR rights, potentially profoundly and irreparably.

However, ZXC also leaves room for case specific factual assessment, recognising that in some circumstances informed public understanding may mitigate that harm – particularly where the court itself is able, through a clear public judgment, to frame the position accurately. That distinction matters because ZXC did not involve a judicial act, unlike in this case.

Therefore, an assumption that open justice will apply is the relevant starting point. The ZXC case does not invert this principle and was "not a case about the open justice principle" and is not "rewriting" that principle. The relevant balancing act therefore must be structured and consider whether there is an interference prescribed by the law, whether it pursues a legitimate aim and whether it is necessary in a democratic society.

Against that background, the court carefully encapsulated the objective features of the present case: a young overseas student with high value assets subject to a civil recovery investigation by the NCA, based on reasonable grounds for suspicion linked to major money laundering prosecutions abroad involving close family members. The orders in issue are UWOs which are information gathering measures imposed at an early stage on a low threshold. The court accepted that lifting anonymity would amount to a serious and significant interference with the respondent’s Article 8 rights, given her age, career aspirations and the risk of unfair reputational damage, and that these considerations weighed heavily in favour of anonymisation as a limited derogation from open justice.

Nevertheless, when conducting the balancing exercise, the court concluded that anonymisation was not necessary. Strong countervailing factors prevailed: the constitutional importance of open justice, the public interest in full and intelligible reporting of judicial decisions, the global context of one of the largest money laundering scandals in Singapore (already widely and openly reported), and the need to allow the public and press to connect judicial proceedings with information already in the public domain.

The court emphasised that clear judicial reasoning itself promotes informed understanding and mitigates unfair interpretation. Ultimately, although the Article 8 interference was acknowledged as serious, it was justified as lawful, proportionate and necessary in a democratic society; any anonymisation must be lifted.

Key takeaways for future NCA investigations

This judgment is a helpful clarification on the intersection between ZXC and UWO-style cases, in elucidating the boundaries or the reasonable expectation of privacy that individuals have prior to being charged with an offence and the distinction between press reporting on individuals who are being investigated for offences (and have not yet been charged) and judicial proceedings (as is the case here).

This case also demonstrates the significant weight placed on open justice generally, even at the expense of individual privacy rights. Ultimately, the very detrimental impact that the lifting of the anonymity restrictions would have on the respondent was found not to be sufficient to outweigh the public interest in accessing the relevant judgment.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, May 2026