On 1st October 2012, a remarkable piece of legislation comes into force. It is the Education Act 2011 section 13. In fact, section 13 inserts section 141F into the Education Act 2002. For information about the 2011 Act see Department for Education.
The new section is headed - Allegations of offences committed by teachers in England and Wales: reporting restrictions. The effect is that teachers have become the first group of people in British legal history to be given automatic anonymity when they are accused of a conduct amounting to a criminal offence.
The "mischief" with which the section is intended to address is that sometimes false allegations (e.g. of assaulting a pupil) have been made against teachers with consequential devastating impact on their careers and lives. Will this legislation create a new trend toward protection of individuals once an allegation involving criminality is made against them? For instance, the idea of giving anonymity to men accused of rape has been argued from time to time and a plan to grant to such anonymity was abandoned by the government - BBC July 2010.
The new law:
Where a person who is employed or engaged as a teacher at a school is the subject of certain allegations then certain restrictions will apply. The allegations are that (a) the teacher is or may be guilty of a relevant criminal offence and (b) the allegation is made by or on behalf of a registered pupil at the school
In such instances, no matter relating to the teacher is to be included in any publication if it is likely to lead members of the public to identify the person as the teacher who is subject to the allegation.
A "relevant criminal offence" in relation to a person employed or engaged as a teacher at a school, means an offence against the law of England and Wales where the victim of the offence is a registered pupil at the school
Publication is very widely defined and includes "any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public (and for this purpose, every relevant programme shall be taken to be so addressed) ... see subsection 14
A “relevant programme” means a programme included in a programme service, within the meaning of the Broadcasting Act 1990.
The section enables ANY person to apply to a magistrates' court for an order dispensing with the restriction and the court may make an order dispensing with the restrictions, to the extent specified in the order, if it is satisfied that it is in the interests of justice to do so, having regard to the welfare of -
(a) the person who is the subject of the allegation, and
(b) the victim of the offence to which the allegation relates.
Appeals to the Crown Court from the Magistrates' Court will be possible in certain circumstances.
The restrictions will also cease to apply in a number of instances:
- Once proceedings for the offence have been instituted
- If the Secretary of State publishes information about the person who is the subject of the allegation in connection with an investigation or decision under section 141B (investigation of disciplinary cases by Secretary of State) relating to the same allegation
- If the General Teaching Council for Wales publishes information about the person who is the subject of the allegation in connection with an investigation, hearing or determination under Schedule 2 to the Teaching and Higher Education Act 1998 (investigation of disciplinary cases by the General Teaching Council for Wales) relating to the same allegation
- If the person who is the subject of the allegation includes a matter in a publication, or another person includes a matter in a publication with the written consent of the person who is the subject of the allegation .... (see subsection 12b).
A new section 141G makes breach of reporting restrictions a criminal offence but this offence is subject to certain defences set out in section 141H.
Schedule 4 of the 2011 Act is also brought into force on 1st October. This is not considered further here.
Single Justice power?
The right to apply to a Magistrates' Court is also notable in that the court's powers are to be exercisable by a single justice. Where such powers exist, a hearing before a court comprising either a District Judge (Magistrates' Courts) or a bench of justice may not be required since the powers are usually exercisable by a justices' clerk - (see Justices of the Peace Act 1997 section 45). Single justice powers are normally used in relatively routine matters - see here.
In the event that a reporting restriction is raised in the Magistrates' Court then, as required by the section, an "interests of justice" determination has to be made having regard to the welfare of - (a) the person who is the subject of the allegation, and (b) the victim of the offence to which the allegation relates. This would require that the court hears submissions from those parties.
At this stage, it is not clear to me precisely how this new single justice power will operate in practice but one might have expected that such applications would have to be heard before either a judge or a bench even if the hearing itself was itself subject to reporting restrictions. It does not seem appropriate that such a sensitive hearing - a very definite judicial exercise - should be left to these "single justice" arrangements.
Comment:
Even an allegation of criminality against a child can, of course, be immensely damaging for the individual against whom an allegation is made. The teacher may waive the anonymity but one wonders in what circumstances it might be in his or her interests to do so.
The coalition Government pushed the measure through Parliament despite considerable resistance in the House of Lords from Conservative Peer Lord Black of Brentwood and Liberal Democrat Peer Lord Phillips of Sudbury. The Society of Editors and the Newspaper Society, which represents some 1,200 local and regional newspapers across the UK, also both campaigned against the legislation.
Naturally, this legislation is seen by some as the thin end of a wedge leading to anonymity for any professional against whom some allegation involving possible criminality has been made.
In the Commons, education minister Nick Gibb said the move would end the "devastating consequences" for teachers who faced fabricated claims of abusing their position.
See the Research prepared in 2011 for the Department of Education - Allegations of abuse against teachers and non-teaching staff
Other material:
Parliament - House of Commons - Public Bills Committee - Education Bill 2010-11
Memorandum of the Newspaper Society
Department for Education - Referring cases of teacher misconduct
11KBWEducation Law blog and New SIs relating to teachers
Parliamentary Briefing Paper on Anonymity
Media comment:
Press Gazette - 17th November 2011
The Guardian 28th September 2012
Chris Jefferies: Criminal suspects should not be named
Additions 1st October
The Guardian - Greenslade blog - Surely freedom loving Gove cannot defend press restriction?
David Higgerson - The trained journalist who has taken us a step close to a secret state
A good start, but only a start. There is no reason why all defendants should not have the same protection. There will be obvious exceptions where there has already been so much publicity (certain events this week come to mind) that it would be meaningless but in the ordinary run of cases - why not?
ReplyDeleteThis comment has been removed by the author.
DeleteBe it noted that the anonymity is provided only until "proceedings are instituted" and, for when they are instituted, see section 13(15).
DeleteIs the logic of this sound? The accused's life will be damaged by a false allegation if there is publicity prior to proceedings but there will still be damage by publicity once proceedings are instituted. Proceedings may be instituted but the allegation may still be false.
There would of course be better logic in granting anonymity to all accused persons / defendants but there are arguments against that including the point that having names in the public domain may encourage witnesses to come forward.
Some time ago a bill was proposed to give anonymity to all suspects pre-charge. This was in the wake of controversial tabloid coverage surrounding the arrest of Joanna Yeates murder suspect Chris Jefferies. Although he was released without charge, much of the coverage of his arrest appeared to imply his guilt by innuendo.
Many journalists argue that such a ban on naming those who have been arrested by police would be tantamount to creating a ˜secret state' where these is less transparency about who is being held in police custody. Such coverage can also assist prosecutions by encouraging more witnesses to come forward.
Defendant anonymity, rushed by backbench amendment into the final stages of 1976 Sexual Offences Act, was scrapped by a Conservative government in 1988 on the firm advice of the police and every judge on the influential Criminal Law Revision Committee.
See also Parliamentary briefing paper on Anonymity - link near the end of the post above.
Another interesting post on anonymity is at Head of Legal blog - 24th May 2010 - We must see justice done
ReplyDeleteWould the perspective of a Union rep help?
ReplyDeleteTeachers find themselves in a position which few other professional groups face (apart, I suppose, from the police), which is that they are vulnerable to allegations made by people who lack the restraining mechanism of maturity. Teacher gives pupil a detention for misbehaviour - pupil fabricates malicious allegation of assault. No detention - simples! (Example drawn from real life).
In some schools, discipline standards are such that there is open warfare between a minority of pupils and the staff. In such schools, malicious and fabricated allegations, sometimes involving malicious and fabricated corroboration, are, if not a daily, then almost a weekly occurrence. Something has to stop this charade, and if anonymity for teachers moves us in that direction, it is a good thing. Mr Higgins's name won't be in the local paper because 14-year-old Chantelle has falsely accused him of groping her breasts (after he reprimanded her for coming to school in a crop-top and pelmet skirt, contrary to the school's dress code - a fact which, oddly enough, didn't make it to print).
In case you think that is exaggerated, I have had to represent "Mr Higgins" at a gross misconduct hearing in a case where those were the salient facts. In that instance, it was "Chantelle"'s mother who had gone to the press. We were successful and I saved his job: but I can't save him from the whispering and finger-pointing over the garden hedge, or at the supermarket, or in the pub.
The almost inevitable immediate consequence of a serious allegation against a teacher is that the teacher is suspended whilst an internal investigation takes place. The trouble is, in my experience, many Headteachers struggle with the conceptual difference between proving the teacher guilty and the teacher proving her/himself innocent - a situation of obvious hazard to the teacher when coupled, as it is, with the civil standard of proof. Some Headteachers shirk the job because they find it too difficult - let the Governors' hearing sort the wheat from the chaff.
At the moment, all this can take place in the full glare of local publicity. The teacher concerned risks being "named and shamed" in their community regardless of whether they are guilty or not. Mud sticks. Some teachers never recover from the experience and leave the profession - a needless waste of talent and training, quite apart from the effects on the teacher's health and livelihood.
The right to anonymity ceases if criminal proceedings are commenced in respect of the said allegation. For this to happen, the matter will have been investigated by the police, most of whom can tell Stork from butter, and the CPS (of some of whom the same might be alleged) will have concluded that a prosecution is both likely to be successful and in the public interest. This still does not mean that the teacher is guilty, but it ought to sift out those cases where there is clearly no fire burning underneath all the smoke which seems to be blowing about.
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DeleteThank you very much for this most useful perspective. I have no doubt that there IS a very strong case to have these restrictions.
DeleteYour post suggests that allegations of a serious nature are much more frequent than is suggested by the research report (link in the post above). Even the level of allegations in the report is worrying.
I have little doubt that these anonymity provisions will now spread to other areas particularly where young people are concerned. The research paper indicates - "Feedback from the qualitative interviews was that the anonymity provisions introduced for school teachers should be extended to other professionals working with children and young people. The Government has made a commitment to review the effect of the anonymity provisions in the Education Act 2011 in 2 years time."
I also suspect that we will now see the start of demands for anonymity in many other areas and some will be very controversial.
Another angle to all of this should be weighed in the balance. It is not easy to take cases like this to the criminal courts since the key prosecution witness is of course a child / young person. "Special measures" will help if the matter gets to trial. This means that very thorough investigation of allegations should take place before one gets to considering prosecution. Whilst such investigation proceeds, it is perhaps best that the teacher remains anonymous.
One final point though (for now), The Act will not stop "playground gossip" and parents talking to eachother and these can be damaging. I also wondered whether the Act would prevent the media saying something like - "At XXXX School in YYYYville a teacher has been accused of ZZZZ" Of course, such reporting would be thoroughly irresponsible since it would cast suspicion on almost the entire staff of a school. I also think that it might be caught by subsection 3
(3) No matter relating to the person is to be included in any publication if it is likely to lead members of the public to identify the person as the teacher who is the subject of the allegation.
The test therefore is whether the publication was likely to lead to the identity of the teacher being revealed.
I'll second the first Anonymous' perspective. Over here in the Colonies, over 98% of the charges laid in public against teachers are either dropped for lack of (credible) evidence or result in Not Guilty verdicts. It doesn't matter what the verdict is, though, as the adult's life is ruined — and there seems to be no negative consequences for bringing charges. At one time, the public service union was bringing civil action for damages against the adults who pushed cases with no evidence, but that has been quashed now.
DeleteCertainly I've heard children coaching each other on how to get adults in trouble if they don't do what the children want. There are classes that are so risky that I would spend £500 buying a wearable video camera as self defence, especially with a head who believes children can't lie…
As a non-teacher (but married to one) I believe it is fair to state teachers are acutely aware of just how vulnerable, along with the medical and child / youth service professions, they are to vexatious claims. Pupils know this too, not least because of the way in which the majority of the media sensationalises such allegations.
ReplyDeleteThe (very) significant majority of pupils are responsible / mature and care must be taken by all not to present an unjustifiable negative picture of the "youth" as the media so often chooses to do. However, there remains a group who, for many reasons, see disrespect or malice in a teacher's (or teachers') attempts to place boundaries on or to control their wayward behaviour. Their response to this is to this is to make Mr X or Miss Y pay for the slight, to get back at the system or to prove they (the child) is "in charge" in front of their peers.
It will be interesting to see how restrictions work in practise given the familiarity most secondary school pupils have with social media sites. In the case of a malicious claim, where "witnesses" exist, it is even more likely that the allegation will be "Tweeted" with vigour. I can't see a Court working out, even if it wishes to take on the task of, how to stem / stop such a broadcast. A group of 15 year olds is unlikely to be stayed by the thought of Contempt and the prospect of a Head Teacher having to respond to the inevitable parental concerns such rumour will create with a "no comment" statement is going to make the situation and concern worse.
I suspect the change is "good" and should be welcomed but that the unintended consequences will quickly make practical application "bad".
Schedule 4 is, I think, aimed at the problem you mention. I would need to look at that more thoroughly. Haven't quite had the time to do so yet.
DeleteSchedule 4 covers which hosting companies can be held responsible (basically UK unless purely caching).
DeleteThe penalty for an individual who breaks the restriction is Summary fine up to level 5 (£5000) which must, unless unjust to do so, be based on income. It's not clear at what age this could be charged and I suspect that the system would be reluctant to take on a minor with no relevant income.
I'm still of the mind that the change is "good" but I now think practical application will mean it becomes worse than "bad" other than to gag the print or mainstream broadcast media (not bad in itself if it reduces sensational gossip dressed up as news). Tweets will continue and more opaque mud will stick.
"It does not seem appropriate that such a sensitive hearing - a very definite judicial exercise - should be left to these "single justice" arrangements."
ReplyDeleteThe very definite judicial exercise of a single judge presiding over a trial and sentencing a guilty defendant {if required} is a far more important area where it does not seem appropriate IMHO of course.
I am not entirely keen either on single DJs(MC) taking trials alone. However, an alternative put forward by Lord Justice Auld (DJ + 2 JPs), was not taken forward for a number of reasons. Mainly - as proposed - it would have been very unattractive to either party. On a limited number of occasions, this option has however been used.
DeleteSingle justice powers are a different animal and usually are exercisable by clerks though can be exercised by a DJ or a bench.
You have it wrong - anonymity for rape trial defendants was stopped in Nov 2010. Think of Assange and Ched Evans - one either has anonymity for all or for none. Early next year we will see a case that hinges on this concept.
ReplyDeleteNO - anonymity for rape defendants was removed by the Criminal Justice Act 1988 s158(5) which altered the previous position giving anonymity - Sexual Offences (Amendment) Act 1976 s.6, The coalition government, formed in 2010, had plans to return to anonymity for this category of defendant but these were abandoned.
DeleteI am willing to concede that I have it wrong on the dates but just looked up Guardian and Daily Torygraph for 12 Nov 2010 and "plans are shelved". The Ched Evans case and that of Assange highlight the fact that if this is brought to the ECHR the UK will lose. All parties except the Tories & BNP now back the return of anonymity.
DeleteAnonymity is right and not just in sexual cases. The fact that there will be some tweeting and the like just proves that the law has limits - but there is no reason at all why the name of any defendant should be in the print or broadcast media while s/he is still presumed innocent. If you look at a French newspaper the reports of the criminal courts regularly refer to defendants as Monsieur X or Madame Y.
ReplyDeleteI am not convinced by the argument that "witnesses might come forward" - they might, but so might attention-seekers and compensation-chasers.
Exceptions might have to be made either at the request of the defendant or if the information which could be published referred to so few people that it would be unfair to the others in the frame not to do so - "a female Cabinet Minister" comes to mind!
Hope this move proves in ending the false allegations being put against the teachers.
ReplyDeleteThat's really great post, Thanks for sharing this post regarding allegations against teachers
ReplyDeleteNice Post
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