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Law column: A whistle-stop tour of teacher anonymity

footansteylogonewThis week’s column is dedicated to a whistle stop tour of a little-known reporting restriction, which protects teachers from being identified when an allegation is made against them by a pupil. The restriction is contained in S.13 of the Education Act 2011.

Whilst everyone knows about S.39 orders and the right to anonymity for victims of sexual offences, it seems S.13 has largely slipped in under the radar, despite having been in force since 1 October 2012.

The restriction is automatic and prevents a teacher’s identity (or any matter which is likely to lead to his/her identification) from being published, if an accusation of behaviour which amounts to a criminal offence is made by or on behalf of a pupil who is registered at the same school.

Therefore, for this reporting restriction to apply, the pupil making the allegation has to be a pupil at the school at which the teacher currently teaches. This is particularly relevant when it comes to historic offences, because it is unlikely that all of the conditions of the restriction will be fulfilled, and therefore the teacher may be identifiable from an earlier stage.

Crucially, this restriction ceases to apply when “proceedings for the offence have been instituted” – so once the teacher is charged with the offence, the restriction is no longer in force. The teacher can then be identified freely, subject to any other restrictions that may apply.

The restriction can also be dispensed with if a successful application is made to the Magistrates’ Court. Anyone can make an application, and in determining it, the Magistrates will consider the welfare of both the teacher and the alleged victim. The decision of the Magistrates can be appealed to the Crown Court.

The restriction will also cease to apply if the teacher in question publishes his or her identity in connection with the allegation, or if the teacher gives consent.

In the event that the Secretary of State publishes the identity of the teacher, S.13 will also no longer apply.

Of course, even if the restriction is lifted due to any of the reasons above, care must be taken if the alleged offence is of a sexual nature, or if a S.39 order is put in place when the teacher appears in court. Of course, identifying the teacher may, depending on the circumstances, be likely to identify the child involved – which could be problematic.

There are two defences to a breach of the S.13 restriction, although I suspect they will not apply in most cases. The first is where the defendant can prove that it did not know, suspect, or have reason to suspect that the publication included the matter which would be likely to identify the teacher. The second is where the defendant did not know that the allegation had been made by the pupil.

From my experience of S.13 to date, I think it is more likely that the publisher will be unaware that the restriction exists – in which case, there will be no defence to a breach of S.13.

As with any breach of a reporting restriction, both the editor and publisher can be prosecuted, resulting in a criminal conviction and maximum fine of £5,000 each – hence why having an awareness of S.13 is incredibly important.

On a practical level, it is important to bear S.13 in mind when dealing with stories about accusations against a teacher, even when the police aren’t involved.

In recent months, I came across a story where the police had said that there was insufficient evidence to charge a teacher for an alleged assault, and therefore no further action would be taken. In this case, the allegation clearly amounted to a criminal offence, and although the alleged victim’s parents wanted to publicise the case, the S.13 restriction would never cease to apply, because the teacher was never going to be charged.

So the moral of the story is, as soon as you have a potential lead involving an allegation against a teacher, visit the actual wording of S.13 to see if the restriction applies. Failing to do so could be costly for your employer and your editor!