03 October 2012

Another brick in the wall of reputation protection


Amber Melville-Brown

Partner | UK

The story of the teacher and his cross-channel flit with a 15 year old pupil has put the teaching profession firmly into the headlines. But potentially taking teachers out of the headlines is the Education Act 2011 which, when it came into force on Monday 1 October, provided that teachers accused of a criminal offence against their pupils be automatically entitled to anonymity. Automatic anonymity The provisions of the new law are relatively narrow and will only apply when a teacher is accused of an offence against one of the pupils in their school. Support staff are not protected from identification under the Act, nor would a teacher accused of an offence against a child from a different school. The new legislation means that teachers are the only group of people automatically entitled to anonymity under English law when accused of an offence.  Nothing can be published which is likely to lead members of the public to identify the person as the teacher who is the subject of an allegation.  The ban lasts while the allegation has been made, but the teacher can be named once proceedings for an offence are instituted —  i.e. on charge or warrant for arrest. Criticism There has been criticism of the new Act. Sussex Police said last week that the runaway pair was found as a direct result of media coverage of the case and detractors argue that the Act would prevent the media assisting in similar cases. But the Department of Education has denied this. The police or the media could make an application to court for an order to allow publication.  Although the prevention of reporting continues until such an order is made, anonymity can be lifted on an application to a Magistrates Court, the court being satisfied it is in the interests of justice. The Secretary of State also has the power to publish the information.  And anonymity will also fall away if the accused teacher publishes material themselves which identifies him or her as the teacher subject to an allegation.  This poses numerous questions with today's modern media; for example, whether the posting of Twitter messages would be sufficient to identify a party and justify the lifting of the restriction.  Pros and cons When weighing up the rights at play, the court will consider both the welfare of the accused and the alleged victim. But there has been further criticism that the new measures place the welfare of teachers before that of their pupils. Campaigners have argued that it reverses the presumption of freedom of expression and forces the media to take the time and expend legal costs to apply to court and that the new law could impact upon parents, fellow teachers or even other pupils who published the allegations. Breach of the act is a criminal offence carrying a penalty of up to £5,000 although publishers have a defence if they did not know or suspect that an allegation had been made.  Existing legislation already provides automatic anonymity to victims of certain offences in the Sexual Offences Act 1992. And courts also have the power to order that those accused or convicted of crimes remain anonymous under the Contempt of Court Act 1981. Tracey Connelly and Steven Barker, the mother and stepfather of Baby P, initially had their identities protected after their convictions while Barker was tried for a separate offence. The new act places further restrictions on the media's ability to report criminal complaints and proceedings, already predominantly governed by the Contempt of Court Act 1981 and the Magistrates Court Act 1980, which aim to ensure the accused can receive a fair trial.   The Attorney General, Dominic Grieve QC, has been vigorous in pursuing Contempt of Court actions against newspapers; The Sun and The Mirror both received five figure fines last year for their reporting on the case of Chris Jefferies, the landlord falsely accused of murdering Joanna Yeates.  Balancing the rights at play Implementation of the Act will need to protect the respective rights at play. Of course, vulnerable children need to be protected but equally, a damaging allegation about a teacher by a pupil can do irreparable harm and ruin their career for life, where it is in fact baseless and never results in an arrest let alone a prosecution. With this Act, teachers will be the only group who automatically receive anonymity once a complaint about them is made – there is no such provision even for those accused of serious violent or sexual offences. The very fine line between the right to reputation, the right to a fair trial and the right to freedom of expression is constantly being redefined and no doubt will be played out in the courts with the implementation of this controversial legislation. By Roger Waite (trainee) and Amber Melville-Brown (partner)

Amber Melville-Brown

Partner | UK

Category: Blog