When deciding whether to make a Restricted Reporting Order in a sexual misconduct case, can the tribunal take into account the need to protect alleged perpetrators?
Yes, held the EAT in A & B v X, Y and Times Newspapers Ltd.
The facts of this case are presently unknown but the EAT gave useful guidance on relevant factors to deciding whether it's 'necessary in the interests of justice' to make a RRO.
The EAT held the statutory protection is there not only to protect the victims and witnesses to sexual misconduct, but also those innocently accused of perpetrating it. The accused's protection may thus be relevant. In weighing up that factor, the Tribunal needs not be satisfied by the public's ability to discern between proven and unproven allegations or that a reputation damaged by false allegations will be vindicated on judgment.
When conducting the balancing exercise, the tribunal can consider ECHR Article 8 (right to respect for private and family life) and Article 10 (freedom of expression) issues, as well as the principles of open justice. A tribunal should ignore the social status or public profile of the accused and should also not use a RRO to redress the statutory imbalance caused by the Sexual Offences (Amendment) Act 1992 giving anonymity to alleged victims of sexual offences.
Finally, the EAT made clear that a RRO only lasts until promulgation of the liability judgment. Any further reporting restrictions have to be justified under the higher 'strictly necessary' common law test.
Thanks to Jason Braier of 42 Bedford Row for preparing this case summary.