A significant number of teenagers were stabbed to death in our cities during 2007. Legal Expertise explains the new powers given to headteachers to search pupils for weapons with and without consent

In this the third issue we explain the new powers given to headteachers to search pupils for weapons with and without consent. As you will see, this is a challenging and potentially risky area for schools and colleges. Tragically, seven teenagers have been stabbed to death this year (2007) in London alone. New powers for headteachers to deal with the risk of weapons being brought on to school premises were originally proposed back in 2004 but have only recently arrived on the statute book.

Education Questions and Answers

Have the powers for schools to search pupils for weapons come into force yet?

Yes, they have. Proposals in this area were first made as long ago as 2004. However, section 550AA of the Education Act 1996 as inserted by section 45 of the Violent Crime Reduction Act 2006 did not come into force until 31 May 2007. This new piece of legislation granted headteachers, and staff they authorise, a new power to search pupils, without consent, when they have reasonable grounds for suspecting that a pupil has a knife or other weapon. Guidance has also been issued for the appropriate use of the new powers.

What is the extent of the new powers?

The Guidance distinguishes between no-contact or low-contact screening, and body searches that involve touching the student. In summary there are three broad powers:

Screening − non-contact random screening of pupils

Searching with consent − contact search of pupil with the pupil’s consent

Searching without consent − contact search where consent has been refused

It should be noted that these are powers and not duties − they are there to assist schools but do not put any obligation on schools to use them.

How does random screening work?

Schools can impose screening without suspicion and without consent. The new law allows schools to install walk-through security arches and to invest in handheld metal-detecting wands. Schools can then refuse entry to pupils who refuse to be screened. It is not the intention that headteachers ‘block’ every entrance to the school with arches and security guards. Instead, the Government has suggested that schools consider investing in handheld wands to be used randomly, as opposed to screening all pupils everyday. The principle seems to be that the threat of screening is itself a deterrent.

What about searching pupils, is that recommended?

If no-contact screening detects a metal object on the pupil’s person, schools now have the power to search. All reasonable efforts should be taken to get the student’s consent beforehand. If this cannot be obtained then the headteacher can decide to exercise the new statutory power to search without consent, where there are reasonable grounds for suspecting a pupil has a knife or other weapon.

Are there any risks involved in such searching of students?

When the powers came into force seven months ago, teachers’ unions were understandably quick to raise the safety concerns associated with searching. Apart from safety concerns, the physical contact element also leaves staff open to allegations of assault and/or inappropriate touching. The guidance recommends training for staff, and that two adults are present when a without-consent search of a pupil is carried out. These measures are advisable but will not necessarily stop a pupil making an allegation, unfounded or otherwise. The law allows the school to employ appropriately trained security guards and to use the police for searches, but the practical implications of doing so are far from simple. Are schools expected to have SIA approved security staff permanently on site? If the police are required, how long will it take for them to arrive to conduct a search? In the meantime, what do you do with the pupil? Given these potential complications the guidance makes it clear that schools should only use the power to search without consent when all other options have been exhausted.

If I do decide to search a pupil, what happens afterwards?

That depends very much on whether you discover a weapon. If, for example, you find that a pupil has a knife, you can seize it. It is a criminal offence under section 139A of the Criminal Justice Act 1988 to have a knife or offensive weapon on school premises. It is a defence to be carrying one for an educational or other lawful purpose. If you suspect the knife is illegal, you should inform the police and arrange to pass the knife to them as soon as possible. It is likely that the police will wish to question the pupil from whom the knife was seized. As the pupil was committing an offence by being in possession of the knife, prosecution may follow and the teacher present at the search may be required as a witness. Record keeping is important. Following a search, whether or not a weapon is uncovered, the school should make a record of the person searched, the reason for the search, the time and the place, who was present and note the outcomes and any follow-up actions.

Do I have to inform anyone about the search?

The law does not require schools to inform a parent or to seek parental consent before a search, but parents clearly might be concerned about their child being searched. Therefore as well as publicising the school’s policy in advance, the guidance recommends that headteachers should inform parents when their child has been searched, and offer an opportunity to discuss the matter.

If the power to search without consent proves useful, it is probable that it will be the threat of a search rather than the actual search that is most effective. If pupils know they could be searched at any time, hopefully they will be less likely to bring a knife to school and risk prosecution. With that in mind, and having regard to the potential risks involved, perhaps the best use of the new power is informing parents and pupils that searches will take place. After all, prevention is better than cure.

This e-bulletin issue was first published in December 2007

About the author: Dai Durbridge is author of this issue. He specialises in social services and education work, mainly concerning allegations of professional negligence.