Seizure of personal effects can interfere with pupils’ human rights, so you need to make sure it’s done lawfully, writes Ingrid Sutherland

Previously we covered the discipline sections of the April 2007 guidance on school discipline and pupil behaviour policies. Here, we highlight section 3.8, which deals for the first time in DfES guidance with the thorny issue of teachers’ rights to confiscate, retain and dispose of inappropriate items. There is also reference to related guidance on the right to search pupils for weapons, a new power which came into force at the end of May 2007.

This section of the guidance is recommended good practice and schools are strongly advised to follow it. Schools are not required by law to have regard to it, but it should help them to understand their rights and responsibilities in this area.

Main points

1. Schools can include confiscation of pupils’ property as a disciplinary sanction in their behaviour policy.

2. To be lawful, confiscation must be a reasonable sanction in the circumstances of the particular case.

3. Decisions about retention and disposal of confiscated property
must also be reasonable in the circumstances of the particular case.

4. There is a specific statutory defence for school staff who have reasonably confiscated pupils’ property.

5. In limited circumstances, authorised staff can search pupils
for weapons.

The law now

The overall power to enforce disciplinary penalties covers the use of confiscation as a disciplinary sanction. This includes seizure and, as appropriate, the retention and disposal of certain items. As with other sanctions, confiscation must be applied in a reasonable and proportionate way.

A member of staff will have a specific statutory defence if s/he can prove that any seizure, retention or disposal of a particular item was lawful.

When is seizure lawful?
Unauthorised seizure, retention or disposal of a pupil’s property interferes with that pupil’s rights under Article 1 of the First Protocol to the European Convention on Human Rights, which has been incorporated into British law in the Human Rights Act 1998. Article 1 guarantees entitlement to peaceful enjoyment of one’s possessions.

So a teacher or other member of staff may only seize, retain or dispose of a pupil’s property if s/he has authority to do it. Section 94 of the Education and Inspections Act 2006 provides that authority when the confiscation is a lawful disciplinary penalty.

It is for the staff member confiscating the item to show the legality of the confiscation, since s/he has made the decision to interfere with the property, that is, the burden of proving the lawfulness of the act is on the teacher.

  • If authority can be shown, the staff member has a defence to all civil proceedings against him or her, and is not liable for any damage or loss arising. It is also a defence in any criminal proceedings taken out against him or her, e.g. for theft. 
  • In criminal cases, the prosecution must prove beyond a reasonable doubt that the alleged offence has taken place. It would then be up to the teacher to prove his or her defence of lawful authority.

Under human rights law, for the confiscation to be lawful, it must be justifiable on the basis that it is necessary in a democratic society by being:

  • in pursuance of a legitimate aim, and
  • proportionate

The aim pursued in confiscating property is maintaining an environment conducive to learning, and safeguarding the rights of other pupils to be educated.

What is ‘proportionate’?
Proportionality depends on the value of the property. For example, if a pupil is playing music loudly on a personal music player, it is likely that total destruction of the device after confiscation is disproportionate, which would make such a step unlawful.

Taking the device and returning it at the end of the school day is much more likely to be a proportionate response. Cutting the headphone wire is highly unlikely to be proportionate.

A member of staff should first ask the pupil to give him or her the item. If such reasonable request is refused, the staff member can then follow the guidelines in the school’s published discipline policy on how to deal with situations where pupils fail to follow instructions, or other unacceptable conduct.

On the other hand, if a paper ball or piece of chewing gum has been confiscated, disposal of the item is likely to be a proportionate response.

Although confiscation of a mobile phone is legitimate, searching through a phone or accessing text messages without the pupil’s permission is not.

In some circumstances it may be reasonable for a member of staff to ask a pupil to reveal a message, for example, to establish whether cyber-bullying has occurred, but if the pupil refuses, then the member of staff should not enforce the instruction.

S/he can, however, legitimately issue a disciplinary sanction for failure to follow a reasonable instruction.

Practicaly considerations

What criteria for confiscation might a school use?
It is for individual schools to determine the criteria in the light of their own behaviour policy or any other policies, e.g. on school uniform. Included might be items that:

  • pose a threat to others: e.g. a laser pen being used to distract and possibly harm other pupils or staff
  • pose a threat to good order for learning: e.g. a pupil using a personal music player in class
  • are against school uniform rules: e.g. a pupil refusing to take off a baseball cap on entering a classroom
  • pose a health or safety threat: e.g. a pupil wearing large ornate rings in PE which may present a safety threat to other pupils
  • are counter to the ethos of the school: e.g. material which might cause tension between one community and another
  • are illegal for a child to have: e.g. racist or pornographic material  — protocols for how to deal with such items can be agreed with local police

Section 3.9 of the guidance deals with taking account of individual pupil needs such as those with SEN/disabilities and others ‘at risk’: e.g. minority ethnic and faith groups, travellers, asylum seekers, refugees, pupils with English as an additional language, looked-after children, sick children, young carers, children from families under stress, pregnant schoolgirls, teenage mothers and any other pupils at risk of disaffection and exclusion.

Confiscation of jewellery and clothing
Schools should take particular care when deciding whether to confiscate such items. In particular, they should consider whether the item in question has religious or cultural significance to the pupil and should avoid physical contact or interference with pupils’ clothing of a kind that might give rise to child abuse allegations.

In order to minimise such risks, schools should ensure that if an item of clothing or jewellery is confiscated, this is done by a staff member of the same sex as the pupil and with another staff member present where possible. Confiscation of any item that would leave the pupil only partly dressed must be avoided.

What to do with confiscated items
Schools should keep records of confiscated items and the grounds for the action, so that they may justify them later if challenged. Some schools write a note in the pupil planner to inform the pupil’s parent that an item has been confiscated, and the note is countersigned on return.

Pupils have a right to expect that confiscated items, especially those of monetary or emotional value, will be stored safely until they can be returned. For items of obvious value, schools should ensure appropriate storage arrangements (e.g. in a safe, the finance office, or the head teacher’s office).

All reasonable steps should be taken to make such arrangements secure. If similar items have been confiscated from several pupils, such as mobile phones or personal music players, schools should take care to ensure that they are clear which item belongs to which pupil.

For some items school staff should seek specialist advice, e.g. suspected illegal drugs or items that might be used as weapons. Schools should develop protocols in partnership with police, youth offending teams and other specialist agencies to cover such issues — and to ensure that schools have access to specialist support and advice if an incident occurs (see Find out more, below).

Mobile communication technologies
This includes mobile phones and wireless technologies. It is recommended that schools should have a clear policy on the use and possession of mobile phones. This should include clear statements about powers of confiscation, taking account of:

  • the safety of pupils on the journey to and from home and parental concerns over this issue (schools should return confiscated phones before the pupil leaves the school premises, if these are relevant factors)
  • examination board and school rules about the use of such technologies in examination settings, including supervised coursework
  • the unacceptability of pupils using phones or other technological equipment to humiliate or bully other members of the school community (e.g. sending abusive text messages, cyber-bullying or using camera phones for so-called ‘happy slapping’ — recording and transmitting images of abuse)
  • whether, and in what circumstances, the school judges it appropriate to inform parents about the confiscation of such items

How long should items be confiscated for?
In most cases, confiscation is a sufficient sanction, and return of the item at the end of the lesson, school session, or school day is adequate time to reinforce the school rule.

This also limits the chance of problems with loss of items while in the care of school staff.

Not returning an item
There may be some cases when the school chooses not to return an item to the pupil. The guidance gives three examples:

1.  Items of no value
For example an inappropriate message scrawled on a piece of paper. These may simply be disposed of, but schools should remember that some items of seemingly no value may have emotional value to the child and staff should establish if this is the case before deciding whether or not to dispose of the confiscated item.

2.  Items of value that should not have been brought to school
Items of value that the pupil should not have brought to school or which s/he has misused in some way might, if the school judges this appropriate and reasonable, be stored safely at the school until a responsible family adult can come to retrieve them. For example, there is no acceptable reason why a pupil should bring a cigarette lighter to school — and in such circumstances, retention is a reasonable step both to protect property and to enable discussion about whether the pupil is smoking and how this can be addressed.

3.  Items that the pupil should not have had in his or her possession
Such items, particularly of an unlawful or hazardous nature, may be given by the school to an external agency for disposal or further action as necessary, but should always be followed by a letter to the parents confirming that this has taken place and the reasons for such action.

Search without consent

Although this is only mentioned in passing in the guidance on confiscation, it is important to note that there is separate legal provision in the section 45 of the Violent Crime Reduction Act 2006 (and related guidance), which grants to head teachers, and staff they authorise, a new power (not a duty) to search pupils, without consent, when they have reasonable grounds for suspecting that a pupil has a knife or other weapon.

The search may be carried out on school premises or anywhere else where pupils are under the charge of the member of staff conducting the search, such as during an off-site educational visit.

What the guidance covers The guidance is very detailed and covers issues such as liaising with the police, what could constitute reasonable suspicion to allow a search to take place, the use of reasonable force and special factors to take into account, for example if the pupil may have special educational or medical needs. It also details the possible consequences of a search — such as the need to seize, store and surrender a confiscated weapon, other items that may be found in the course of a search, keeping records, informing parents and training, insurance and assessing risk.

The guidance also sets out that schools can screen pupils without suspicion for weapons, using electronic means such as wands or arches.

Guidance for school staff on screening or searching pupils for weapons works with the power in section 45 of the Violent Crime Reduction Act 2006, which came into force on 31 May 2007. See Find out more for details.

Search power only extends to weapons
The legal power for school staff to search pupils only extends to weapons. A pupil might reasonably be asked to turn out his or her pockets or to hand over an item such as a personal music player that is causing disruption, and the school might use its legal power to discipline if the pupil unreasonably refuses to cooperate.

But if it is necessary to search a pupil for (say) illegal drugs or stolen property, this should be done by the police, rather than school staff, using the appropriate powers available to them.

Peace and protection?

Many head teachers complain about how much of their time is taken up dealing with problems arising out of the possession and use by pupils of mobile phones on the school site.

Hopefully this guidance will go some way to helping school staff understand the legal requirements for ensuring a peaceful learning environment exists for the whole school community, whilst protecting themselves from claims of unlawful actions.

Find out more

Download the new guidance from teachernet
More on behaviour and discipline
Guidance on search without consent
For information on relationships with the police, see Guidance on Safer School Partnerships
For advice on safe storage and disposal of illegal drugs, see the DfES’s Drugs guidance

Ingrid Sutherland is a solicitor, giving advice and training for the Advisory Centre for Education