Searching, Screening and Confiscation in Schools
The power for schools to search pupils has been around for some time but there’s nothing like a DfE update to remind schools of their legal obligations. The latest guidance was updated on 18 January 2018, you can read this here although it has actually changed very little.
What has changed?
The updated guidance seeks to provide greater clarity for schools when seizing electronic devices. It previously stated where an electronic device was confiscated school staff could delete data or files if there was “a good reason to do so”. This point has now been expanded upon to specify that where a device is found that contains evidence relevant to an offence, or where the school considers the device should be passed to the police, the school should not delete any data or files. Whilst this might seem like common sense, greater clarity is likely to be welcomed by busy education professionals.
What does the rest of the guidance say?
For those schools that haven’t read the ‘Searching, Screening and Confiscation’ guidance for a little while, here’s a little reminder of the key points:
What is ‘Screening’?
Screening requires no physical contact and usually involves checking pupils with a metal detector.
Is consent required?
Neither pupils nor their parents need to give consent for screening, nor does the pupil need to be suspected of having a weapon on them.
What if a pupil refuses to be screened?
If a pupil refuses to be screened, the school can refuse the pupil’s entry to school (although this should be included within the school’s behaviour policy). This will not be classed as an exclusion but as an unauthorised absence.
What is ‘Searching’?
Searching can involve asking a pupil to turn out their pockets, looking in the pupil’s bag or locker or asking them to remove an outer layer of clothing. Where an electronic device is found during a search, schools can search the device when there are reasonable grounds for doing so.
Reasonable force may be used to search for certain items but this would only be in exceptional circumstances and such searches should normally be left to the police.
What can be searched for?
Searches should only be carried out where the headteacher (or member of school staff authorised by the headteacher) has reasonable grounds to suspect that a pupil is in possession of a prohibited item (such as a knife, illegal drugs or any item banned by the school rules).
Is consent required?
Schools should ordinarily seek a pupil’s consent to a search. If the pupil refuses to cooperate then the school may apply a sanction, in accordance with its behaviour policy. A search without consent may only be undertaken by the headteacher or an authorised member of staff where they have reasonable grounds for suspecting that a pupil has a prohibited item in school.The member of staff carrying out a search should normally be the same sex as the pupil and a witness should also be present.
What is ‘Confiscation’?
School staff can confiscate, retain and/or destroy anything they find as a result of a search, so long as it is ‘reasonable.’
What are the school’s responsibilities in relation to confiscated items?
The following must be passed to the police:
- Weapons or items which are evidence of an offence (unless there is good reason to retain or dispose of it)
- Controlled drugs or substances that may be controlled drugs (unless there is a good reason to dispose of them)
- High value stolen items (unless there is a good reason to return them to their owner)
- Pornographic images where there are reasonable grounds to suspect that possession constitutes an offence
Where school staff confiscate an item from a pupil that does not need to be passed to the police they must take reasonable steps to ensure that the item is stored securely.
Is there anything schools should be doing?
Schools should ensure that their behaviour policy clearly sets out their processes for searching, screening and confiscation including detailing any items that are banned. They should also ensure that they have a clear policy for pupils taking valuable items (such as mobile phones) into school.
Whilst there is no requirement for schools to record their searches or to notify parents/guardians, it is good practice to do so.
If you would like further information on Searching, Screening and Confiscation, please get in contact with Laura Thompson, or you can give us a call on 0345 070 6000.