Confiscating pupil property can be an effective tool in maintaining order in classrooms and holding the attention of pupils. Dai Durbridge explains the legal provision and how teachers should make their decisions to confiscate

In response to the public perception that pupil behaviour had deteriorated and that steps needed to be taken to redress the balance in favour of the teacher, the government passed the Education and Inspection Act 2006, which included the powers for teachers to confiscate pupil property. Now that those provisions of the Act have been in force for over a year, Dai Durbridge considers the extent to which teachers are using them and whether they have had a positive impact.

What power does the Act give to teachers to confiscate a pupil’s property?

Parliament set out the rules on confiscation in one short section of the Act.  The provision intends to stop pupils making any claim against staff at a school for loss or damage to confiscated items, as long as the staff member can show that: 1.    they had the requisite authority (any paid member of staff does, as do unpaid staff members if so authorised by the headteacher); 2.    the confiscation was on school premises, or elsewhere where the pupil was under the school’s control; 3.    the confiscation was ‘reasonable’.

The position with 1 and 2 seems clear, but in what circumstances will it be ‘reasonable’ to confiscate?

The concept of reasonableness features heavily in the definition of legal rights or duties, and it is notoriously difficult. A large dose of common sense is always required to work out what is reasonable in any given circumstance. The legislation tries to give more certainty by specifying that, in order to be reasonable, the confiscation must be ‘proportionate’, and that the staff member must also consider the pupil’s age, religion, special educational needs and disabilities. However, no practical guidance has been given on when it is reasonable to confiscate an item or when it is reasonable to destroy a confiscated item.  This has provided teachers with a degree of uncertainty and has meant that most have opted not to use this power.

When will it be proportionate to confiscate an item and how long should it be kept?

Let’s look at mobile phones by way of example.  By January 2005, 5.5m children under the age of 16 owned mobile phones and the vast majority of these children would bring their phones to school.  Mobile phones can be a disruptive influence in the classroom, the sending and receipt of texts and calls or game-playing causing particular distraction.  It is unlikely that the destruction of a mobile phone will ever be considered reasonable, but the confiscation of it would be.  Unfortunately, the lack of guidance in this area means that teachers have no benchmark as to what is reasonable.  One option is to consider the wrong you are seeking to right by confiscation.  If a pupil is texting or game-playing in a lesson, confiscation is likely to be reasonable.  However, it is unlikely to be proportionate to keep the phone past the end of the school day, as the pupil cannot cause any further disruption after school has ended.  If the pupil continues the behaviour upon return of the phone, a longer period of confiscation is likely to be considered reasonable. The key is being proportionate – consider whether the punishment fits the crime.

Presumably, if a pupil or a parent believes a confiscation to be unreasonable it is for them to prove it?

Actually, no.  In law, it is usually the position that the person who believes they have been wronged has to show that the actions leading to it were unreasonable.  In contrast, the Act puts the burden of proving reasonableness firmly on the shoulders of the teacher.  If the teacher fails to show that they acted reasonably and the pupil can show that he or she suffered damage as a result of the confiscation, that pupil may decide to bring a claim against the school. This additional burden has proved to be another hurdle that teachers need to overcome before using their power to confiscate, and it has often been the one at which teachers decide not to confiscate.  The possibility of an irate parent seeking justification for a teacher’s actions will exist regardless of the law; but, without its backing, teachers can be left vulnerable and unsupported.

Would you recommend using the power?

There is a real risk that the Act creates more problems for teachers than it was intended to solve.  Providing teachers with a power to confiscate and destroy without offering guidance on how to use those powers has proved problematic.  When this is coupled by the fact that teachers could be forced to justify every decision to confiscate and/or destroy, the use of these powers looks less and less appealing.

However, as long as your decision can withstand scrutiny and be shown to be proportionate, the power can be an effective tool in maintaining order in classrooms and holding the attention of pupils.

This article links to Dai Durbridge’s article on the power to use force on a pupil.

This e-bulletin issue was first published in July 2008

About the author: Dai Durbridge is a solicitor for Browne Jacobson specialising in child protection and education.