In particular, it explains the use of the power to search pupils without consent. It also explains the powers schools have to seize and then confiscate items
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2 Contents Summary 3 About this departmental advice 3 Expiry or review date 3 Who is this advice for? 3 Key points 3 Searching 3 Confiscation 4 Schools™ obligations under the European Convention on Human Rights (ECHR) 4 Screening 5 Searching with consent 6 Searching without consent 7 During the search 10 After the search 11 Further sources of information 15 Associated resources (external links) 15 Legislative links 15
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3 Summary About this departmental advice This advice is intended to explain schools™ powers of screening and searching pupils so that school staff have the confidence to use them. In particular, it explains the use of the power to search pupils without consent. It also explains the powers schools have to seize and then confiscate items found during a search. It includes statutory guidance which schools must have regard to. Expiry or r eview date This advice will be kept under review and updated as necessary . Who is this advice for? This advice is for: School leaders and school staff in all schools in England. For the purposes of this advice references to ﬁmaintained schoolﬂ means a community, foundation or voluntary school, community or foundation special school. It also means Pupil Referral Units and non -maintained special schools. For the purpose of this advice references to ﬁAcademyﬂ means Academy schools (including mainstrea m free schools) and A lternative Provision (AP) Academies (including AP free schools). Where particular provisions do not apply to a particular type of school we make this clear. Key points Searching School staff can search a pupil for any item if the pupil agrees .1 Head teachers and staff authorised by them have a statutory power to search pupils or their possessions , without consent, where they have reasonable grounds for suspecting that the pupil may have a prohibited item. Prohibited items are: 1 The ability to give consent may be influenced by the child™s age or other factors
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4 knives or weapons alcohol illegal drugs stolen items tobacco and cigarette papers fireworks pornographic images any article that the member of staff reasonably suspects has been, or is likely to be, used : to commit an offence, or to cause personal injury to, or damage to the property of, any person (including the pupil). Headteachers and authorised staff can also search for any item banned by the school rules which has been identified in the rules as an item which may be searched for. Confiscation School staff can seize any prohibited item found as a result of a search. They can also seize any item, they consider harmful or detrimental to school discipline. Schools™ obligations under the European Convention on Human Rights (ECH R) Under article 8 of the European Convention on Human Rights pupils have a right to respect for their private life. In the context of these particular powers, this means that pupils 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 scho ol 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 se arching powers in a lawful way.
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5 Screening What the law allows: Schools can require pupils 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 pupils. Schools™ statutory power to mak e rules on pupil behaviour 2 and their duty as an employer to manage the safety of staff, pupils and visitors 3 enables them to impose a requirement that pupils undergo screening. Any member of school staff can screen pupils. Also note: If a pupil refuses to be screened, the school may refuse to have the pupil on the premises . Health and safety legislation requires a school to be managed in a way which does not expose pupils or staff to risks to their health and safety and this would incl ude making reasonable rules as a condition of admittance. If a pupil fails to comply, and the school does not let the pupil in, the school has not excluded the pupil and the pupil™s absence should be treated as unauthorised. The pupil should comply with the rules and attend. This type of screening, without physical contact, is not subject to the same conditions as apply to the po wers to search without consent. 2 Section 89 of the Education and Inspections Act 2006 for all maintained schools, PRUs and NMSS and the Education (Independent School Standards) (England) Regulations 2010 for academy schools and alternative provision academies 3 Section 3 of the Health and Safety at Work etc. Act 1974
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6 Searching with consent Schools™ common law powers to search: School staff can search pupils with their consent for any item. Also note: Schools are not required to have formal written consent from the pupil for this sort of search Œ it is enough for the teacher to ask the pupil to turn out his or her pockets or if the teacher can look in the pupil™s bag or locker and for the pupil to agree. Schools should make clear in their school behaviour policy and in communications to parents and pupils what items are banned. If a member of staff suspects a pupil has a banned item in his/her possession, they can instruct the pupil to turn out his or her pockets or bag and if the pupil refuses, the teacher can apply an appropriate punishment as set out in the school™s behaviour policy. A pupil refusing to co -operate with such a search raises the same kind of issues as where a pupil refuses to stay in a detention or refuses to stop any other unacceptable behaviour when instructed by a member of staff Œ in such circumstances, sch ools can apply an ap propriate disciplinary penalty.
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8 summon a staff member of the same sex as the pupil and a witness then the teachers wishing to conduct a search must do so. 4. Authorising members of staff Headteachers should decide who to authorise to use these powers. There is no requirement to provide authorisation in writing. Staff, other than securi ty staff, can refuse to undertake a s earch. The law states that head teachers may not require anyone other than a member of the school security staff to undertake a search. Staff can be authorised to search for some items but not others; for example, a member of staff could be authorised to search for stolen property, but not for weapons or knives. A head teacher can require a member of the school™s security staff to undertake a search. If a security guard, who is not a member of the school staff, searc hes a pupil, the person witnessing the search should ideally be a permanent member of the school staff, as they are more likely to know the pupil. 5. Training for school staff When designating a member of staff to undertake searches under these powers, the headteacher should consider whether the member of staff requires any additional training to enable them to carry out their responsibilities. 6. Establishing grounds for a search Teachers can only undertake a search without consent if they have reasonable grounds for suspecting that a pupil may have in his or her possession a prohibited item. The teacher must decide in each particular case what constitutes reasonable grounds for suspicion. For example, they may have heard other pupils talking about the item or they might notice a pupil behaving in a way that causes them to suspect that the pupil is concealing a prohibited item . In the exceptional circumstances when it is necessary to conduct a search of a pupil of the opposite sex or in the abse nce of a witness, the member of staff conducting the search should bear in mind that a pupil™s expectation of privacy increases, as they get older. The powers allow school staff to search regardless of whether the pupil is found after the search to have that item. This includes circumstances where staff suspect
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9 a pupil of having items such as illegal drugs or stolen property which are later found not to be illegal or stolen. School staff may wish to consider utilising CCTV foota ge in order to make a decision as to whether to conduct a search for an item . 7. Searches for items banned by the school rules An item banned by the school rules may only be searched for under these powers if it has been identified in the school rules as an item that can be searched for. The school rules must be determ ined and publicised by the head teacher in accordance with section 89 of the Education and Inspections Act 2006 in main tained schools. In the case of a cademy sch ools and alternative provi sion academies, the school rules must be determined in accordance with the School Behaviour (Determination and Publicising of Measures in Academies) Regulations 2012. Separate advice on school rules is available in ‚Behaviour and Discipline Œ advice for he adteachers and school staff™ via the link under Associated Resources. Under section 89 and the School Behaviour (Determination and Publicising of Measures in Academies) Regulations 2012 the headteacher must publicise the school behaviour policy, in writi ng, to staff, parents and pupils at least once a year. 8. Location of a search Searches without consent can only be carried out on the school premises or, if elsewhere, where the member of staff has lawful control or charge of the pupil, for example on school trips in England or in training settings. The powers only apply in England.
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During the search 9. Extent of the search Œ clothes, possessions, desks and lockers What the law says: The person conducting the search may not require the pupil 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 clothi ng™ includes hats; shoes; boots; gloves and scarves. ‚Possessions™ means any goods over which the pupil has or appears to have control Œ this includes desks, lockers and bags. A pupil™s possessions can only be searched in the presence of the pupil and another member of staff, except where there is a risk that serious harm will be caused to a person if the search is not conducted immediately and where it is not reasonably practicable to summon another member of staff. Also note: The power to search w ithout consent enables a personal search, involving removal of outer clothing and searching of pockets; but not an intimate search going further than that, which only a person with more extensive powers (e.g. a police officer) can do. 10. Lockers and des ks Under common law powers, schools are able to search lockers and desks for any item provided the pupil agrees. Schools can also make it a condition of having a locker or desk that the pupil consents to have these searched for any item whether or not th e pupil is present. If a pupil does not consent to a search (or withdraws consent having signed a consent form) then it is possible to conduct a search without consent but only for the ﬁprohibited itemsﬂ listed above. 11. Use of force Members of staf f can use such force as is reasonable given the circumstances when conducting a search 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. Such force cannot be used to search for items banned under the school rules. Separate advice is available on teachers™ power to use force Œ see Associated Resources section below for a link to this document
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After the se arch 12. The power to seize and confiscate items Œ general What the law allows: 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 pupil™s property as a disciplinary penalty, where reasonable to do so. Also note: The member of staff can use their discretion to con fiscate, retain and/or destroy any item found as a result of a ‚with consent™ search so long as it is reasonable in the circumstances. Where any article is reasonably suspected to be an offensive weapon, it must be passed to the police. Staff have a defen ce to any complaint or other action brought against them. The law protects members of staff from liability in any proceedings brought against them for any loss of, or damage to, any item they have confiscated , provided they acted lawfully. 13. Items foun d as a result of a ‚without consent™ search What the law says: A person carrying out a search can seize anything they have reasonable grounds for suspecting is a prohibited item or is evidence in relation to an offence. Where a person conducting a se arch finds alcohol, they may retain or dispose of it. This means that schools can dispose of alcohol as they think appropriate but this should not include returning it to the pupil. Where they find controlled drugs , these must be delivered to the police as soon as possible but may be disposed of if the person thinks there is a good reason to do so. Where they find other substances which are not believed to be controlled drugs these can be confiscated where a teacher believes them to be harmful or detrim ental to good order and discipline. This would include, for example, so called ‚legal highs™. Where staff suspect a substance may be controlled they should treat them as controlled drugs as outlined above. Where they find stolen items , these must be deli vered to the police as soon as reasonably practicable Œ but may be returned to the owner (or may be retained or
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