Loopholes for journalists in the new teacher anonymity law: What you can safely report

The new law that gives anonymity to teachers accused of crimes against their pupils has rightly been criticised by the Society of Editors and others.

The measure is certainly bad for the media. But it’s worth looking at what you can safely report. There are some loopholes. For instance, it may be possible to name the school.

If the allegation involves a sexual offence …

1. You cannot use the pupil’s name, address, photo, school, or other details leading to their identification. Restrictions under the Sexual Offences Act 2003 trigger when a complaint about a sexual offence has been made by the pupil, or someone acting on their behalf.

2. You cannot use any information leading to the identification of the teacher. This comes under the new law – the Education Act 2011 The Education Act 2011

But this means that you should be able to:

1. Name the school – providing you do not say the allegation was made by a pupil who went there. You could only say: A boy, a child, a girl, a teenage boy etc.

2. Give general details about the teacher – depending how big the school is. Saying: ‘A male teacher in his 40s’ may be safe if he works at a large comprehensive school. But it would be dangerous if he worked in a small primary school. Beware the libel risk, too. Saying ‘The man is a senior teacher at St Muggins’ would be unlikely to identify the teacher concerned, but could defame other male senior teachers who worked there. You could get round this by asking the education authority to provide a statement saying: ‘A senior teacher at St Muggins has been suspended’. This would the provide qualified privilege against the defamation risk. Rights of reply from innocent teachers should be handled carefully, though.

If the allegation involves a non-sexual offence …

1. You cannot use any information leading to the identification of the teacher.

2. You can name the school, and say that the pupil went there, because the ‘no school’ restrictions under the Children And Young Persons Act do not trigger until the child appears as a witness in court and is granted a section 39 order to protect their identity.

So it is important to check if the allegation being made by a pupil is a sexual offence – see http://www.legislation.gov.uk/ukpga/2003/42/contents

There are other loopholes, too. The new restrictions:

1. Don’t apply to teaching assistants, caretakers, school ancillary staff etc.

2. Only apply when a pupil has made an allegation of a crime. If the allegation involves something else, then you are free to name the teacher. Just because a teacher is suspended after a complaint by a pupil does not necessarily mean you cannot name him. Check what’s he’s alleged to have done.

3. Don’t apply if the teacher agrees, in writing, to the restrictions being lifted. A teacher can be approached by the press to clear his name or give his side of the story. If he agrees, you can name him, and the school, unless he’s been investigated for a sexual offence. Then, you couldn’t say the allegation had been made by a pupil at the school … just refer to ‘a child’. The teacher should not pressured into giving consent, or harassed in any way.

4. Don’t apply if the teacher publishes the allegations himself. So monitor his Facebook page and other social media, in case he mentions he is the subject of an inquiry etc.

The media can apply to a magistrate have the restrictions lifted. But it’s unlikely a hearing could be obtained in time, and the chances of winning are slim. The media can only argue that the teacher should be named in the interests of justice – there is no right to make a challenge in the public interest. And even if there is an argument about the interests of justice, magistrates still have to consider the welfare of the teacher and the pupil before agreeing to lift the restrictions.

Cleland Thom is a consultant and trainer in media law

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