Labour & European Law Review Weekly Issue 426 01 July 2015
As the right to privacy of someone suspected of serious criminal offences cannot outweigh public interest in open justice, the Employment Appeal Tribunal (EAT) has held in BBC v Roden that a judge should not have granted an anonymity order to a claimant against whom a number of serious sexual allegations had been made.
Mr Roden was on a fixed term contract which was due to finish in May 2013. At the end of March, the BBC received written allegations of a sexual nature about him in relation to three students who had attended a writing course in Glasgow at which he had been the tutor. The company later learned that police held information about a separate incident involving Mr Roden and a young person that suggested he posed a risk to young men.
At a meeting on 1 May to discuss these matters, Mr Roden denied the allegations and also denied that any similar allegations had ever been made against him. At a further meeting in July, the BBC told him that it did not feel able to re-employ him because of other serious allegations it had received about him. He then told the BBC about an incident at a college in Cornwall, but alleged that he had been cleared of any wrongdoing. However, it later transpired that the college had summarily dismissed him for gross misconduct following the distribution of a photograph that showed him simulating oral sex with a student.
The employment judge decided that Mr Roden’s identity should be anonymised throughout the hearing because of the allegations of serious sexual assaults that had been made against him. Although these were not directly in issue in the proceedings the hearing would include evidence about the allegations. He later ordered that the anonymity order should be made permanent as there was a risk the public would conclude that Mr Roden had actually committed the offences despite the fact that they had not been the subject of proceedings in any court.
The judge dismissed all his claims against the BBC on the basis that the decision to dismiss was reasonable, given the background facts. However, the BBC applied for the anonymity order to be set aside.
The EAT allowed the appeal, holding that the judge had failed to carry out the correct balancing exercise between the public interest in open justice and the right to a private life under Article 8 of the European Convention on Human Rights. Instead he had focused on one factor (the risk of public misunderstanding and its consequences for Mr Roden) and concluded that it outweighed any other factor.
Given that the Supreme Court decided in favour of the public interest in the case of Guardian News and Media Ltd which concerned the most serious unsubstantiated allegations about terrorism offences, it was difficult to see why this case should be decided differently. Just as with control orders, in the context of criminal investigations into sex abuse allegations, the public interest in open justice outweighs the Article 8 rights of a person suspected of serious criminal offences.
In any event, the weight that should be attached to Mr Roden’s Article 8 right was low because he had chosen to bring proceedings against the BBC in a public tribunal knowing that he had not been honest with his employer about the circumstances of his earlier dismissal for gross misconduct. He had not forfeited his right to privacy by doing so, but it was a significant factor that the judge should have considered, but did not.