Richard Bird, former headteacher and now legal consultant to the Association of School and College Leaders (ASCL), looks at the wisdom of using the power to search in schools and concludes that there are often better options
The power to search by force for offensive weapons has been presented by much of the media as one more ‘get tough with school thugs!’ initiative. It was a gift to them that the power was granted, not in an Education Act, but in the Violent Crime Reduction Act. It came about in response to a series of stories relating to school pupils carrying knives, along with the report of a murder in a school using a knife. The scale of knife carrying may be new but carrying blades is not just a recent phenomenon. Readers of To Sir With Love may remember one of the hero’s pupils being sentenced for wounding with a knife he happened to be carrying. I also seem to recall that, back in the sixties, there was a press story about primary school pupils in a dockland area in London (long before it came ‘yuppy’ heaven), bringing razor blades into school and threatening teachers. To read the media coverage of the new ‘power to search’ one might imagine that schools will now be filled with scenes of brawny PE staff holding down quivering children while they are subjected to a full body search. What would become of relationships in schools if this was being repeated universally? Would heads jump in to use these powers and would staff be forced to participate in searches that would humiliate children whether they wanted to or not?
In fact the truth was much less spectacular: this was more a ‘tidying up’ than a new initiative. The move has to be seen in the context of the Steer report, rather than in the headlines about school bullies and youth murders. What has been happening is that the powers that schools had – or thought they had – in common law are increasingly being codified in statute. There are several reasons for this. One is that, as the Steer report made clear, the basis for the powers was less than secure. Fundamentally, the parent’s consent to hand over their child to a maintained school is less clear than it is with a private school. Put crudely, a private school makes a contract with parents. The school agrees to do its part as advertised in the prospectus and the parent agrees that the child behaves and that the parent accepts the school’s rules, as detailed in the prospectus. Essentially, the law has developed to deal with that situation and is only by an extension of it that it has been transferred to maintained schools, where there is no such contractual relationship. In a maintained school, parents do not choose a school – they only express a preference. They are obliged to send their child to the school allotted, or educate the child otherwise. The home-school agreement is not contractual and there is only a limited sense in which the school is therefore in loco parentis. The Human Rights Act also introduces uncertainty. There is no doubt that a search of a person’s clothes does infringe the right to private life. Interference with this category of right is permitted by the Convention on Human Rights if – and only if – it is according to law: This means that the law specifically allows it and that the law is clear enough for people to regulate their conduct by it. (It must also be proportionate and for a proper purpose.)
Providing a sound legal basis for action
There is an assumption that a school can search belongings and lockers if there is good reason. However, a personal search goes much further and it could certainly be argued that it needs a much clearer legal basis. The Violent Crime Reduction Act provides that legal basis without, and specifically without, withdrawing any other powers to search. Of course, a statutory right is not without hazards. If the right is laid down with conditions, then to breach those conditions opens the user to legal action. Since the headteacher is the one given the power to authorise the use of force to search, the head will be the respondent in the court case. This is particularly so because in a high profile case before the Court of Appeal it was determined that a headteacher was a ‘public authority’ in his or her own person. This part of the decision was not overturned in the subsequent House of Lords hearing. The conditions are clear. The right to search is not for drugs or stolen property; it is only for offensive weapons. Only a member of staff authorised by the headteacher can search with force. The searcher must be of the same gender as the person being searched and there must be an observer of the same gender. This may make the use of these powers completely useless in many primary schools where the child to be searched is most likely to be male and the only member of staff who is male will quite possibly be the caretaker. However, this is highly unlikely to be a problem in secondary schools. Only outer clothing may be removed. Essentially this excludes shirts, blouses, trousers and skirts. Only reasonable force may be used and then only on reasonable suspicion. This suggests that schools should train searchers and, presumably, restrainers, to ensure that a bad situation is not made worse. If one tries to imagine the situation in which these powers might be used, the problems begin to multiply. An offensive weapon is an object made, adapted or used to harm. A revolver qualifies in the first category; a broken bottle in the second; a kitchen knife or stick in the third. So… a student who is a gang member may be in possession of a gun or be holding it for another gang member who is over 18 years old and therefore liable to a heavy prison sentence for possession. H/she brings it into school. It may be to show off; it may be to frighten someone; it may be to murder on instructions. The last is highly unlikely because of the risk of detection but one should not completely discount the possibility that a young person may assume that the rule of silence will in fact protect him or her. A knife may also be brought into school for similar reasons. A more likely scenario is that a pupil brings some form of knife into school to protect him or herself, either from bullying or extortion.
Acting on rumours
The head is likely to hear of this at something like third hand. No teacher is likely to have seen the weapon; nor is there likely to be a willing witness. It will be a rumour that ‘X has a gun/knife/razor blade.’ This may be capable of being a ‘reasonable suspicion.’ You will not know until the court decides. You will have to rely on the court to support you. Be that as it may, what is the result of an attempt to use force likely to be? The young person is likely to be wound up anyway. Whirling hormones may have reduced the reasoning centres of the brain. It may also be that a young person is infected with a ‘boyz in da hood’ fantasy, or something similar. Given the right cues, they may play a role from that fantasy accordingly. One cannot imagine a situation better calculated to produce a catastrophe than an attempt to frog-march such a pupil out of the playground and to search by force. The natural result might well be that the pupil would revert to a street scenario with himself in a starring role and resist with the very weapon he is to be searched for. There also has to be a realisation that on the whole teachers are not super-fit action heroes. Young men and women used to fighting on the street are likely to be fitter, faster, heavier-muscled and less inhibited. Guidance does suggest that trained security staff might be used. This may well be part of an answer in some schools where the danger is most acute. But even bouncers are now trained to rely less on force than on talking.
In my view, the fact is that, faced with a potentially dangerous situation, schools will be much better advised to rely on the curious fact that children often bring a different persona into school than the one they show on the street. They may well show teachers more obedience and respect on a Monday morning than they do the police on a Saturday night, although of course this cannot be relied upon. The best strategy in high-risk areas may well be not to use the power to search. To have a power does not imply a duty to use it. It could be better to use the right to screen pupils by means of a metal detector and if there is a rumour to ask the pupil to turn out pockets or hand over a jacket and to punish by exclusion if there is a refusal. Keep it in the realm of school discipline: not in the world of the street. If in doubt, call the police. They may arrive late but they have the skills, power and technique to act appropriately. Of course, things never happen in quite the way we imagine. People do not behave in straight lines. So there may be cases where the fact that the power exists may allow a pupil to claim he was searched by force or was threatened with it. The fact that h/she can claim this may allow him to hand over a weapon that he is holding for someone else without getting into trouble with the gang.
There may, of course, be a revenge reaction from the gang but that is another issue. One must also allow for the fact that there may be no choice but for the school to do something and that using the power to search may be the best way to deal with a given situation. What having that option means is that the teacher and the head, provided that they follow the rules, will not be liable if they do act. So, though the use of these powers is likely to be rare, it is useful to have them.