Headteachers have new powers to screen search pupils for offensive weapons and they can delegate them to staff. Jenni Whitehead looks at recent draft guidance explaining how the new powers will operate
In the light of the recent news of the stabbing of very young people by other very young people, what can schools do to try to prevent knives and other weapons coming into school?
At the moment teachers can screen pupils if they believe they are bringing weapons into school. However, a new power comes into force on 31 May, which gives headteachers the power to search pupils whom they suspect are carrying weapons and in some instances searches will be allowed even where the student refuses to cooperate. Heads will also be able to delegate this responsibility to other members of staff. Draft Guidance for School Staff: Screening or Searching Pupils for Weapons (Clause 45 in the Violent Crime Reduction Act) explains both the legality of this new power and describes the circumstances in which searches may be conducted.
The introduction to the guidance describes what it advises on:
- ‘the power to screen pupils for weapons without suspicion; and
- ‘the section [550AA] of the Education Act 1996 as inserted by section 45 of the Violent Crime Reduction Act 2006. This comes into force on 31 May 2007. It grants to 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. 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. When school staff decide to conduct a search under this power, they must follow the conditions set out in the Education Act 1996.
‘The guidance is aimed at all maintained schools, including pupil referral units, and will be offered as a guide to other schools, including independent schools, when they consider whether or not to screen pupils or to use the new search power, or both.’
The consultation draft suggests that the guidance will also be of use to FE institutions. FE staff have a similar power under section 85B of the Further and Higher Education Act 1992 (inserted by section 46 of the Violent Crime Reduction Act 2006) to search, with reasonable grounds for suspicion and without consent, students of the institution.
The consultation draft suggests that in the case of students above compulsory school age, sixth formers and FE students, the governing bodies of schools and FE institutions may make consent to being searched a condition of enrolment.
No-contact, low-contact screening
The draft guidance distinguishes between no-contact or low-contact screening with a wand, metal detector or walk-through scanner, and body searches that involve touching the student.
Schools can impose screening without suspicion and without consent. The guidance suggests that occasional screening of a randomly selected group of pupils should ‘normally be enough to deter and prevent’ and warns against the routine use of screening on entry.
I am sure this will be received with mixed reactions, some will argue that it is pointless to have screens if they are not used routinely. Is there or isn’t there a risk? Others would support limited use of screening on the grounds that to screen all students at the point of entry demonstrates a lack of trust in students and shows disrespect for the majority of students who do not bring dangerous weapons into school.
The school will be able to refuse entry to pupils who refuse to be screened. Schools will be reassured by the following statement:
‘If a pupil refuses to be screened, the school may refuse to have the pupil on the premises or on an off-site educational visit. The school has a statutory power to make reasonable rules as a condition of admission. If the pupil fails to comply, and the school does not let the pupil in, the school has not excluded the pupil. The pupil’s duty is to comply with the rules, and attend.’
If no-contact screening detects a metal object on the pupil’s person schools will now have the power to search. However, all reasonable measures should be taken to gain the student’s consent beforehand. The guidance suggests that if a scanner goes off indicating the young person is carrying something that this will help to persuade them to give their consent to being searched.
Searching without consent The guidance states that the new statutory power to search without consent applies where there are reasonable grounds for suspecting a pupil has any of the following:
- ‘Anything referred to [in the guidance] as a “knife” – to be precise, any article which has a blade or is sharply pointed.
- ‘An object referred to [in the guidance] as an offensive weapon – to be precise, any article made or adapted to injure a person, or any article which is intended by the person carrying the article for such use by him or by another person. This is taken from section 1 of the Prevention of Crime Act 1953. (Three types of article are covered: (1) a weapon made for causing injury, such as a gun; (2) an article adapted for causing injury, such as a bottle broken deliberately for the purpose; (3) an article not made or adapted for causing injury but which the person who has it intends to be used for the purpose of causing injury, eg a paperweight.)’
It says that searches will be allowed where there are reasonable grounds to suspect that a pupil is in innocent possession of a weapon but there must be a reasonable suspicion.
It notes that ‘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.’
Schools are reminded that they should only use the power to search without consent if all other options have been exhausted. Other options include:
- questioning the pupil, and where this confirms a suspicion, ‘asking the pupil to surrender the weapon, reminding the pupil about key points of the school policy and school rules and that it is a criminal offence, with severe penalties, to carry a weapon in school. (As from 12 February 2007 the penalty for carrying a knife or offensive weapon is up to four years’ imprisonment and/or a fine).’
- where the student denies possession but staff are still suspicious, asking the student to consent to a search
- using ‘talking down’ techniques to calm the student down and reduce the risk of escalation.
Involving the police or security guards
The guidance, while giving the power to the head and authorised teachers to search pupils without consent, is clear that where it is felt unsafe for staff to search a pupil the police should be called. (Wouldn’t this be the safer option anyway?)
If the school employs a security guard they can ask them to search a pupil, but only if this is written into the contract, and schools would be well advised to check their insurance policies before asking them, or indeed any member of staff, to carry out this action.
This is not a duty!
The guidance recognises how skilled many teachers are in defusing situations and in taking control when they need to but makes it absolutely clear that teachers do not have a statutory duty to carry out body searches. Teachers have the right to refuse to search pupils! It seems clear then, that before developing any policy, a school will need to address this issue with staff and establish an understanding that while some staff will feel fine about searching, others will not, and this should not be seen as a weakness in individual members of staff.
Two adults present
Two adults must be present when a without-consent search of a pupil or of their possessions is carried out. In the former case, both must be of the same sex as the pupil. Thus, if a school did not have two male members of staff, staff would not be able search a male pupil and, if a male security guard were not available, the police would have to be called.
Teachers cannot be forced to participate in carrying out the search but can be directed by the head to act as one of the two adults needed to be present. This may prove a difficult issue for staff who have decided that they do not want to be authorised to search pupils. What happens if while being one of the two present, the other member of staff gets into difficulty? The guidance also says that both people should be trained in search techniques. (It’s all beginning to feel like a bit of a minefield!)
It is suggested that schools seek training advice from the British Security Industry Association and that any training undergone should take full account of the guidance.
How far can a search go?
‘The power to search on suspicion and without 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 (eg a police officer) can do.’
The guidance goes much further in describing the nature of the search than I can describe here but basically expects teachers to behave reasonably. If force is used it should be limited, if patting over clothing suggests there is a weapon the student should be asked to surrender it rather than the teacher taking it forcibly.
Definition of ‘suspicion’ and ‘reasonable’
Having a suspicion is described in some depth in the draft, but ‘reasonable’ is not. Suspicion should be based on ‘facts relevant to the likelihood of finding a weapon’ not just on the idea that a young person is ‘the kind of person’ to carry a weapon. The word ‘reasonable’ is used quite a lot in childcare law but very rarely defined. ‘Reasonable’ generally means behaviour that would be acceptable to most law-abiding adults given the situation at hand.
The guidance encourages schools to use the curriculum to educate young people about how to behave and therefore reduce incidents of violence and cites the Improving Behaviour and Attendance Strategy as providing schools with support to create ethos that minimises bad behaviour.
Records must be kept of all searches and governors can ask for an annual report of the number of searches carried out. Record the nature of the search, whether it was of a group of students or an individual, grounds for suspicion and action taken, date and sign record entries.