Searching, screening, confiscation and physical restraint

The law gives school permission to search and screen students so long as this is proportionate. When conducting searches and screenings the school will refer to the guidance set out by the Department for Education in the guidance document:-

Searching, screening and confiscation - Advice for headteachers, school staff and governing bodies - January 2018.

The key points from this guidance are as follows:

• searching is defined as checking students’ belongings, outer garments, pockets and desks for prohibited or banned items.

• screening is defined as walking through a metal detector arch or being screened by hand held metal detector wand, for purposes of checking for weapons or items that could be used as weapons, whether or not the school suspects individual students.

Searching

• Headteachers and authorised staff have a statutory power to search students or their possessions, without consent, where they have reasonable grounds for suspecting that the student may have a prohibited item, if there is reason to believe that student is about to commit an offence or cause personal injury to, or damage to the property of, any person (including the student).

• Headteachers and authorised staff can also search, without the student’s consent’ for any item banned by the school that is illegal and/or could pose a health and safety risk.

• Headteachers and authorised staff can also search students with their consent for any items.

• Under article 8 of the European Convention on Human Rights students have a right to respect for their private life. In the context of these particular powers, this means that students have the right to expect a reasonable level of personal privacy.

• The right under Article 8 is not absolute, it can be interfered with but any interference with this right by a school (or any public body) must be justified and proportionate.

• The powers to search in the Education Act 1996 are compatible with Article 8. A school exercising those powers lawfully should have no difficulty in demonstrating that it has also acted in accordance with Article 8. This advice will assist schools in deciding how to exercise the searching powers in a lawful way.

• The staff member conducting the search must be the same sex as the student being searched; and there must be a witness (also a staff member) and, if possible, they should be the same sex as the student being searched.

• There is a limited exception to this rule. Staff can carry out a search of a student of the opposite sex to themselves and / or without a witness present, but only where they reasonably believe that there is a risk that serious harm will be caused to a person if they do not conduct the search immediately and where it is not reasonably practicable to summon another member of staff.

• The law says that person conducting the search may not require the student to remove any clothing other than outer clothing. ‘Outer clothing’ means clothing that is not worn next to the skin or immediately over a garment that is being worn as underwear but ‘outer clothing’ includes hats, shoes, boots, gloves and scarves.

• The school will inform parents/carers by phone that the search has taken place and the reasons, outcome and any next steps. However, the school is not required to inform parents/carers beforehand or to seek parental permission to search a student.

• ‘Possessions’ means any goods over which the student has or appears to have control – this includes desks, lockers and bags.

• A student refusing to co-operate with such a search raises the same issues as where a student refuses to stay in detention or refuses to stop any other unacceptable behaviour when instructed by a member of staff – in such circumstances, schools can apply an appropriate disciplinary penalty.

Screening

• The law allows that schools can require students to undergo screening by a walk-through or hand-held metal detector (arch or wand) even if they do not suspect them of having a weapon and without the consent of the students.

• Schools’ statutory power to make rules on student behaviour and their duty as an employer to manage the safety of staff, students and visitors enables them to impose a requirement that students undergo screening.

• Any member of school staff authorised by the headteacher can screen students.

• If a student refuses to be screened, the school may refuse to have the student on the premises. Health and safety legislation requires a school to be managed in a way which does not expose students or staff to risks to their health and safety and this would include making reasonable rules as a condition of admittance.

• If a student fails to comply, and the school does not let the student in, the school has not excluded the student and the student’s absence should be treated as unauthorised. The student should comply with the rules and attend.

• Schools’ general power to discipline, as circumscribed by Section 91 of the Education and Inspections Act 2006, enables a member of staff to confiscate, retain or dispose of a student’s property as a disciplinary penalty, where reasonable to do so.

• School staff can confiscate any prohibited (banned and/or illegal) item found as a result of a search or if the student is seen displaying the item. They can also seize any item they consider harmful or detrimental to school discipline.

• Confiscated items that are illegal and/or dangerous e.g. drugs and weapons will be given to the police.

• Confiscated items that are not illegal but pose a health and safety risk: e.g. alcohol and tobacco, will be disposed of by the school.

• Below outlines the process for confiscated mobile phones.

• The process for all other banned items that are not dangerous or illegal will be confiscation and a 40 min detention will be issued. For first occurrences, the item will be returned on the same day after detention. If the item is confiscated before the cut off point for detention, it can be collected by the student that day, after detention. If the item is confiscated after the cut off point for detention, it can be collected at the following day, after detention.

In rare occasions, school staff may be required to restrain a student through the use of reasonable force. When doing so we will follow the guidance set out in Use of reasonable force - Advice for headteachers, school staff and governing bodies - July 2013. The key points from this guidance are as below.

Incidents of physical restraint must:

• always be used as a last resort and to prevent harm to students or adults.

• be applied using the minimum amount of force and for the minimum amount of time possible.

• be used in a way that maintains the safety and dignity of all concerned.

• never be used as a form of punishment.

• be recorded and reported to parents/carers.