What powers do teachers actually have when it comes to disruptive pupils at school? Dai Durbridge discusses with reference to the use of force and confiscation
Over the past 18 months or so, the government has, through legislation and guidance, provided teachers with a number of new powers intended to provide them with the support and protection required to ensure that effective education is not disrupted. In theory, the most far-reaching changes include law and guidance on confiscation of pupils’ property and the use of force in schools.
The Education and Inspections Act 2006 (the Act) became law in late 2006, but the provisions for managing school discipline did not come into force until April 2007. Soon after, the government issued non-statutory guidance on when and how to use these powers.
So, for the past academic year, teachers have in theory benefited from new powers to assist them in retaining control in the classroom and beyond. The question is, have they been used? More importantly, have they worked?
It is imperative that any rules on discipline are not too broad-brush. Every disruptive pupil is different. Some are calculating and deliberate; some are vulnerable; others struggle with disability or special needs. While the rules take a very basic approach, they do try to observe these differences. They can be briefly summarised as:
When the Act came into force, the government made its intentions clear: schools were to promote ‘self-discipline and proper regard for authority’, to encourage respect for others and to prevent ‘all types of bullying’. Basically, schools were expected to ensure that by regulating the conduct of pupils, their standard of behaviour was acceptable.
The government has set out the rules on confiscation in a few short sections of the Act (sections 90, 91 and 94). The new provisions will stop pupils making any claim against any member of staff at a school for loss or damage to confiscated items, as long as the staff member can show that:
The first two requirements are straightforward – all members of staff have the power to confiscate an item from a pupil as long as that pupil is under their control (in school or, say, on a school trip) at the time. However, ‘reasonableness’ is a little more difficult. This concept of reasonableness features regularly in the definition of legal rights or duties, and is particularly troublesome. However, difficult as it may be, it is also the way in which the new rules respond to each pupil’s individuality.
The Act does give some certainty by specifying that, to be reasonable, the confiscation must be ‘proportionate’, and that the staff member must also consider the pupil’s age, religion, special educational needs and disabilities (section 91).
However, proportionality is ultimately a matter for the courts – hence the government has offered no practical guidance on when it is reasonable to confiscate an item or when it is reasonable to destroy a confiscated item. Naturally, this has left an element of uncertainty, leading most teachers to opt against using the power. To illustrate the point, consider mobile phones.
We are all too aware of the concerns raised after ‘happy slapping’ attacks upon teachers and the videoing of vandalism of school premises. This has led to numerous calls to ban mobile phones in schools. While these sorts of attacks may be at the extreme end of the spectrum, more subtly, mobile phones have proved to be a very disruptive influence in the classroom, with the sending and receiving of texts and calls, or game playing, causing particular distraction to pupils.
If you find yourself in this position, would you decide to confiscate the phone? If so, how long would you keep it? Would you go as far as to destroy it, even? What protection does the Act give you if you answer yes to any of those questions?
It will come as no surprise that it is most unlikely that the destruction of a mobile phone will ever be considered reasonable; but, in these circumstances, confiscation would be. The difficulty for teachers is that lack of government guidance in this area leaves them with little assistance and no benchmark as to what one should consider reasonable.
Is it proportionate?
A sensible option for teachers when considering the reasonableness of confiscation is to measure the wrong you are seeking to right against the act of confiscation itself and consider whether your intentions are proportionate. Put another way, is the wrong you are seeking to right proportionate to the act of confiscation?
As an example, if a pupil is sending texts during a lesson and ignores your requests to stop, it would be reasonable to confiscate the mobile phone. Having done so, you then need to consider how long to keep it. The Act simply states that confiscation has to be reasonable. Again, it would be prudent to apply the same test – what wrong are you seeking to right?
The pupil’s ability to disrupt the lesson ceases as the lesson ends, so it is likely to be considered proportionate to return the phone at that point. If the pupil continues the behaviour upon return of the phone, a longer period of confiscation is likely to be considered reasonable. The key is being proportionate and considering whether the punishment fits the crime.
A note of caution: in law it is usually the position that the person who believes they have been wronged has to show that the actions leading to it were not reasonable. Inexplicably, the Act puts the burden of proving reasonableness firmly on the shoulders of the teacher. In other words, if you are challenged by a pupil following a confiscation, it is for you to prove that you acted reasonably.
Providing teachers with broad powers to confiscate and destroy property without offering guidance on the appropriate use of those powers has meant that most teachers have opted not to invoke them. There is a real risk that this part of the legislation creates more problems than it intended to solve.
The use of force
It is important to note that the Act does not envisage a return to corporal punishment. Corporal punishment remains unlawful and the new Act reiterates this to remove any possible doubt. Furthermore, the Act does not allow staff members to use force as a punishment. Instead the use of force is only allowed to stop a pupil:
As with confiscation, the difficult concept of reasonableness is pivotal. Only ‘such force as is reasonable’ should be used. For the most part, this is not new. Staff have long had powers to use reasonable force to prevent offending, injury or damage to property. Reiterating these powers in the Act is done only to add emphasis and to give context to the novel aspect of these rules – the right to use force to maintain ‘good order and discipline’. Again, the rules leave plenty of scope for a difference of opinion on whether force would be justified in a particular circumstance.
To give an example, let us reconsider the mobile phone scenario. You seek to confiscate the phone as the pupil’s actions are possibly ‘prejudicing the maintenance of good order and discipline at the school’, but you are met with a refusal from the pupil. According to the Act, you can use force to gain control of the phone. But what degree of force is reasonable?
The government has published guidance designed to assist in this area. It envisages two general sets of circumstances when different levels of force can be used.
Firstly, if there is no risk of death or serious injury to the pupil or those around him, a gentle, passive approach is recommended. The guidance suggests that the force to be used in these circumstances includes:
i) leading a pupil by a hand or arm
ii) ushering a pupil away by placing a hand in the centre of their back
iii) in more extreme circumstances, using appropriate restraint holds (which will require specific expertise and training).
Secondly, where there is a high and immediate risk of death or serious injury, you would be justified in taking any necessary action. For example, preventing a pupil from running onto a busy road or stopping a pupil from hitting someone with a dangerous object or weapon.
It will not have escaped your notice that the guidance offers assistance only in two sets of extremes – blocking the path of a pupil and taking any necessary action to prevent death or serious injury. This leaves something of a gap covering the myriad of circumstances in-between.
It is safe to say that, along with numerous other situations, our mobile phone example falls in the area not covered by the guidance. It is not life- threatening, nor is leading a pupil by the arm likely to result in the desired outcome. So what option is open to you? Is it reasonable to use force/restraint techniques in order to remove the phone and restore good order and discipline? It is likely that to do so would be disproportionate and therefore unreasonable.
In the recent case of R (C) v The Secretary of State for Justice, the Court of Appeal agreed. While the facts of this case are some distance from those found in school settings – the use of force at a secure training centre – and the guidance different (Ministry of Justice guidance), the crux of the matter considered by the court was the same: Can one use restraint holds to maintain good order and discipline? The Court of Appeal said no, and confirmed that it was excessive and a breach of human rights to do so – a decision that must cast doubt on a teacher’s power to apply the same principles in a school setting.
This power seems more of a hindrance than help. The guidance refers only to the most obvious situations and, following the Court of Appeal’s decision, the use of restraint holds (and to some extent, the use of any force) simply to maintain good order and discipline has to be questioned.
One now has to wonder how often teachers will take the risk of relying on these new powers. Misguided intervention, carried out imperfectly, is likely to make matters worse. New as these powers may be, their useful life may already be over.