Most of the professionals we represent dread the prospect of publicity. Whilst it may be possible to persuade a regulator to shield some aspects of their private life from public scrutiny, explaining that it is almost impossible to achieve anonymity is part and parcel of the work that we all do with our clients.
The legal landscape is familiar:
- the presumption is that hearings will take place in public – indeed Article 6 ECHR (the right to a fair trial) requires that hearings are held in public;
- having a public hearing will impinge upon the Article 8 ECHR right to private life of all those involved;
- those watching, including the press, have rights too – Article 10 ECHR provides for freedom of expression and allows for reporting of events before a regulatory panel.
Articles 6, 8 and 10 are all ‘qualified’ rights. When they are in conflict, the regulatory panel has to balance the competing rights and strike a fair balance. In professional regulatory proceedings that fair balance is more in favour of protecting the article 8 rights of all those involved than the default position in, for example, criminal proceedings. For that reason, regulatory panels will usually exclude the public from sessions where an accused professional’s health is discussed, often anonymise third parties and can be persuaded to exclude the public when other ‘sensitive personal data’, such as sexuality, is discussed.
The fact that a professional and their family will be distressed by the proceedings being held in public or that a private hearing/anonymity would save them from embarrassment are never sufficient reasons for anonymity or a private hearing.
However, there is a narrow path to anonymity.
In very rare cases, a client asserts that publication will endanger their lives. This raises an Article 2 ECHR issue – the right life. Article 2 is not a qualified right – it is an absolute one. When a conflict arises between Article 2 (the right to life of the accused professional) and article 10 (the right of a journalist to report on events), then generally Article 2 will trump Article 10 and anonymity will be granted.
Sometimes the threat to life will arise from the accused person’s own mental illness and the risk of harm they pose to themselves. In those rare cases, an application may be made for anonymity, usually backed by strong medical evidence, on the basis that publication of their identity in association with their misconduct is likely to trigger a mental health crisis leading to a serious attempt to end their own lives.
Regulators approach these issues with caution – no doubt mindful that they do want to create a precedent that any professional can avoid adverse publicity by asserting that publication will cause them to kill themselves.
The General Teaching Council for Scotland has a slightly broader approach to issues of anonymity, as set out in their Privacy and Anonymity Practice Statement.
Although the approach is broader, and envisages situations where article 8 rights (without mentioning article 2) might overcome article 6 and 10 rights, the approach is clearly rigorous, humane and sensible. It was therefore extremely disappointing to see that journalists recently felt able to go behind a careful decision of the GTCS to grant anonymity and write an article under the headline: “Exposed: Cruel teacher, 26, who was struck off after pretending to have cancer and faking her own death.”
The article goes on to detail that:
“The 26-year-old was dubbed Britain’s cruellest teacher after investigators ruled she had carried out a ‘chronic and elaborate deception’ on staff and pupils at a primary school in Dundee.“
Whilst complaining that the profession’s regulators – the General Teaching Council Scotland (GTCS):
“allowed her identity to remain a secret despite her astonishing web of lies and deception which traumatised pupils.”
I need to make clear that this teacher is not our client and we have no special knowledge about the basis on which her application for anonymity was granted. However, it is abundantly clear from the reporting that her behaviours are consistent with the well-known psychological condition – Munchausen syndrome. It seems likely that the teacher was ill.
The newspaper involved has decided that the fact she is still tutoring children (as anyone who has been banned from classroom teaching can do) justifies their naming and shaming of her. It may be that the reporting has significantly disrupted a nascent recovery or, even worse, significantly harmed the individual who the GTCS, after careful consideration of all the competing interests, saw fit to protect.
This brings into sharp focus the toothless nature of any regulator’s ruling on anonymity. If a regulated professional breaches an order, then regulatory action may follow. But if a journalist, or member of the public, decides to ignore the order, then there is very little the regulator can do. In this case, when asked to comment by the newspaper, the GTCS:
said it would ‘not comment on individual cases’ but said revealing the identity of a teacher with an anonymity order could ‘undermine the fairness and integrity of the regulatory process’ and ‘cause real harm to both children and adults’.
The GTCS’s guidance notes this possibility, setting out that:
“Panels should be aware that, unlike many courts, they do not have any enforceable reporting restrictions on the press and so the Panel has no power to prevent information being published by the media. In addition, GTC Scotland has no equivalent contempt of court rule and so Panels have no enforcement powers in relation to witnesses or other individuals reporting information that is not to be disclosed out with the hearing.“
So remember, should you manage to obtain anonymity for your seriously ill client, do not offer them false reassurance that the order cannot be breached by journalists, who may believe they know better than the regulator where the public interest lies.