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The Education Secretary Michael Gove, pictured, made headlines in February when he spoke of ‘giving heads the power to ensure there is exemplary behaviour – and giving teachers the power to keep control in the classroom and the playground’. In a speech he claimed: “Teachers’ powers to search pupils have been strengthened – not just for items that could be used to cause harm or break the law, but for items banned by the school rules – and schools are now free to impose same-day detentions as and when they think best.”
The Department for Education published an updated version of the department’s advice on behaviour policy – in Mr Gove’s words, ‘clarifying and explaining what schools can do, to give teachers more confidence in their own powers’. Asking the misbehaving to pick up litter, or wash graffiti off a wall, sounded good. But what of the practical issues for security staff, who may have to deal with youths at a college, let alone outside school hours at a retail mall or hospital? The two tricky topics of ‘reasonable force’ and how to search for drugs and other bad things (though the over-18s can buy alcohol) remain fraught with potential trouble, which were not solved by Mr Gove’s rhetoric about giving teachers ‘tools to keep control of their classrooms’.
For the full speech on February 3 at at the London Academy of Excellence, visit – https://www.gov.uk/government/speeches/michael-gove-speaks-about-securing-our-childrens-future
The ‘advice on behaviour policy’ that Mr Gove spoke of runs only to 14 pages, though the document does direct readers to separate documents on use of reasonable force, and searching. Visit https://www.gov.uk/government/publications/behaviour-and-discipline-in-schools
The main document says that school staff have the power to use ‘reasonable force’ to prevent pupils offending, injuring themselves or others, or damaging property, and to maintain good order and discipline in the classroom.
“Head teachers and authorised school staff may also use such force as is reasonable given the circumstances when conducting a search without consent for knives or weapons, alcohol, illegal drugs, stolen items, tobacco and cigarette papers, fireworks, pornographic images or articles that have been or could be used to commit an offence or cause harm. Schools can also identify additional items in their school rules which may be searched for without consent. Force cannot be used to search for these items.”
What is reasonable force?
Reasonable force is never defined. In the words of the document, it’s depending on ‘the particular circumstances’. The longest explanation is that the use of force is reasonable if it is ‘proportionate‘, and ‘the degree of force used should be no more than is needed to achieve the desired result’.
The term ‘reasonable force’ does matter because, as the document points out, most teachers some time have ‘a degree of physical contact with pupils’.
According to the guidance: “Force is usually used either to control or restrain. This can range from guiding a pupil to safety by the arm through to more extreme circumstances such as breaking up a fight or where a student needs to be restrained to prevent violence or injury.’ ‘Reasonable in the circumstances’ means using no more force than is needed.
Schools generally, according to the document, use force to control pupils and to restrain them. Control means either passive physical contact, such as standing between pupils or blocking a pupil’s path, or active physical contact such as leading a pupil by the arm out of a class. Restraint means to hold back physically or to bring a pupil under control.
Now how security staff or indeed any uniformed person restrains someone can be tricky – not only because it may well happen in the heat of the moment, but because it can lead to injury or even death. According to the advice: “The decision on whether or not to physically intervene is down to the professional judgement of the staff member concerned and should always depend on the individual circumstances.” In other words; you are on your own. And so are schools; the document says that ‘schools need to take their own decisions about staff training’. Force cannot be used to search for items banned under the school rules.
Screening, searching and confiscation
In a separate document about screening, searching and confiscation at sixth forms and colleges, officials say colleges 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. That word ‘reasonable’ crops up again – if students claim that searches infringe their human rights, the advice is: “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.” But that right is not absolute – not least because of other rights, and powers to search are within the Education Act 1996. If someone refuses to be screened, that could be a to risk to staff and student health and safety.
As a sign of how tricky searches can be, the advice says that you (the searcher) must be the same sex as the student being searched; there must be a witness (also a staff member) present and, if at all possible, they should be the same sex as the student being searched. You may not require the student to remove any clothing other than outer clothing (defined as ‘clothing that is not worn next to the skin’). And you can search if you have reasonable (that word again!?) grounds for suspecting that a student is in possession of a prohibited item.
Staff, other than security staff, can refuse to undertake a search. Staff can be authorised to search for some items but not others; for example, a teacher could be authorised to search for stolen property, but not for weapons or knives. A principal (by implication, not any old teacher) can require a member of the college’s security staff to do a search. If a guard who is not a member of the college staff, searches a student, the person witnessing the search should ideally be a permanent member of the college staff, as they are more likely to know the student. In sum, a college can make a personal search, but not an intimate search, which can can only be carried out by a person with more extensive powers (such as a police officer).
College staff can view CCTV footage to decide whether to conduct a search for an item. Colleges can make it a condition of having a locker that the student consents to have it searched for any item, whether or not the student is present. The subject remains tricky even if a search turns something up, for instance, a ‘legal high’. While a weapon must be turned over to police, it is up to college staff to decide whether there is a good reason not to deliver stolen items or controlled drugs to the police. In another stock phrase, teachers have to ‘use their professional judgement’ – as if teachers know the legal status of a substance?!
The advice goes on to electronic devices, which (though the guidance does not say so) may be used for cyber-bullying or talking (and holding and sending) embarrassing images. This may be what the guidance means by ‘inappropriate material’. If a search finds an electronic device, the searcher ‘may examine any data or files on the device if they think there is a good reason to do so. Following an examination, if the person has decided to return the device to the owner, or to retain or dispose of it, they may erase any data or files, if they think there is a good reason’, not defined. Given all the possible grievances a teenager, his mates and parents may have, it may be surprising that the guidance says that ‘there is no legal requirement to make or keep a record of a search’.
Back to schools
To go back to the schools main advice document, schools can adopt a policy which allows disruptive pupils to be placed in an area away from other pupils for a limited period, in what are often referred to as seclusion or isolation rooms. If a school uses such rooms as a disciplinary penalty this should be made clear in their behaviour policy. As with all other such penalties, schools must act ‘reasonably in all the circumstances’ when using such rooms. The school (as with police and prisons with prisoners in cells) must also ensure the health and safety of pupils and safeguard pupil welfare. At least police and prisons keep prisoners until courts say otherwise; it is for a school to decide how long a pupil should be kept in seclusion or isolation, and for the teacher in charge to determine what pupils may and may not do during the time they are there. Schools should ensure that pupils are kept in seclusion or isolation no longer than is necessary and that their time spent there is used as constructively as possible. Schools should also allow pupils time to eat or use the toilet.