One of the challenges facing teachers is maintaining good order and discipline in schools. Dai Durbridge looks at the powers available to teachers regarding the use of force, and outlines the legal framework of this delicate area
What power does the Act give to teachers to use force? As with confiscation, Parliament set out the rules on the use of force in one short part of the Education and Inspection Act 2006.
One point needs to be made clear: this is not a return to corporal punishment. Corporal punishment is and will remain unlawful, and the new Act reiterates this and confirms that staff members cannot use force as a punishment. Instead the use of force is allowed to stop a pupil:
- committing an offence
- injuring himself or another or damaging property
- prejudicing the maintenance of good order and discipline at the school
As with confiscation, the concept of reasonableness is involved. Only ‘such force as is reasonable’ may be used.
This all seems familiar - is this a new power?
In truth, most of this is not new. Staff at schools have long had the power to use reasonable force to prevent offending, injury or damage to property. Reiterating these powers in the Act simply adds emphasis. The novel aspect to the rules is the right to use force to maintain ‘good order and discipline’. This is couched in broad terms, and leaves ample room for differences of opinion on whether force would be justified in any given circumstance.
What does this mean in practice?
Let us revisit the mobile phone scenario used in the last edition. You decide to confiscate a pupil’s mobile phone in the classroom after a pupil continually distracts others with texts and calls, possibly ‘prejudicing the maintenance of good order and discipline’ in class. The Act tells us that you can use force to confiscate the phone.
How much force can we use and what if the pupil refuses to hand over the phone? Is greater force justifiable?
There is guidance available to assist: http://www.teachernet.gov.uk/_doc/12187/ACFD89B.pdf This guidance envisages two very general circumstances when different levels of force can be used (paragraphs 35-38):
1. Where there is no risk of death or serious injury to the pupil or those around him, a passive, gentle approach is recommended. The guidance suggests that the justifiable force that can be used in these circumstances includes:
- passive physical contact, ie, blocking a pupil’s path or standing between two pupils;
- active physical contact, such as:
- leading a pupil by a hand or arm
- ushering a pupil away by placing a hand in the centre of their back;
- in more extreme circumstances, using appropriate restrictive holds, which may require specific expertise or training.
2. Where there is a high and immediate risk of death or serious injury, any member of staff would be justified in taking any necessary action. Such situations could include preventing a pupil from running off the pavement onto a busy road or preventing a pupil from hitting someone with a dangerous object, such as a glass bottle or hammer.
Does the guidance specifically refer only to these two extremes?
When talking about the actual force that can be used, yes. While it is helpful for the guidance to set out the two extremes – blocking the path of a pupil and taking any necessary action to prevent death or serious injury - there is something of a gaping hole covering the numerous circumstances in between. It seems the guidance hopes to cover these with the catch-all advice of employing restrictive holds, following appropriate training, of course. Unfortunately, this is of limited use in practice.
So to what extent can teachers use force simply to maintain good order and discipline?
Along with a number of other situations, our mobile phone example falls in this undefined area as it is not life-threatening, nor is leading a pupil by the arm likely to result in control of the phone. So can you consider using restraint techniques to remove the phone, thus maintaining 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 away from a school setting – the use of force at a Secure Training Centre – the key issue was on the point: Can one use restraint holds to maintain good order and discipline? The Court of Appeal said no, confirming that it was excessive and a breach of human rights to do so.
Is this power of any use to teachers?
It seems more of a hindrance than a help. The guidance covers only very obvious situations and the suggested use of restraint holds for other situations has to be called into doubt, following the above-mentioned Court of Appeal decision. Without clearer guidance, relying on these powers seems a high-risk strategy. Misguided intervention, carried out imperfectly, is likely to make matters worse. While the power has been in place for over a year, the position seems clear: the power is there in principle, but is fraught with difficulty in practice.
This article follows on from Dai Durbridge's previous article on the power to confiscate.
This e-bulletin issue was first published in September 2008
About the author: Dai Durbridge is a solicitor for Browne Jacobson specialising in child protection and education.
