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.
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
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
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