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Confiscation and use of force
19 August 2008
With the start of the new academic year already upon us, many
teachers are turning their minds to the challenges that lie
ahead. One of the perennial challenges facing education
professionals is maintaining discipline and good order in
schools. Dai Durbridge, an education and child protection
lawyer at Browne Jacobson, looks at the powers available to
teachers to do just that.
In the last 18 months or so the Government
has, through legislation and guidance, provided teachers with a
number of new powers intended to provide them with the support and
protection required to ensure that effective education is not
disrupted. The most far-reaching changes include law and
guidance on confiscation of pupils’ property and the use of force
in schools.
The Education and Inspections Act 2006 (the
Act), perhaps better known for creating trust schools, also covers
school discipline. The Act became law in late 2006 but the
provisions regarding school discipline did not come into force
until April 2007, followed soon after by non-statutory
guidance. Therefore for the entirety of the last academic
year, teachers have in theory benefited from the powers given to
them to assist them in retaining control of the classroom and
beyond. Have they been used and have they worked?
It is imperative that any new rules on
discipline are not too broad brush. Every disruptive pupil is
different. Some are calculating and deliberate, some are
vulnerable, and others struggle with disability or special
needs. Whilst the new rules may take a very basic approach,
they do try to observe these differences. They can be briefly
summarised as:
- Protecting staff from claims for loss or damage to pupil's
possessions which have been confiscated
- Giving staff the power to use force in certain
circumstances
- Providing a power to intervene in behaviour off school
premises
The Government’s intention was for schools to
promote "self-discipline and proper regard for authority", to
encourage respect for others and to prevent "all types of
bullying". Basically, schools are to ensure that by
regulating the conduct of pupils their standard of behaviour is
acceptable.
Confiscation
The government has set out the rules on
confiscation in one short section of the Act. The new
provisions will stop pupils making any claim against any member of
staff at a school for loss or damage to confiscated items, as long
as the staff member can show that:
- They had the requisite authority (any paid member of staff
does, as do unpaid staff members if so authorised by the Head
Teacher);
- The confiscation was on school premises, or elsewhere where the
pupil was under their control;
- The confiscation was "reasonable".
Whilst the first two requirements are
straightforward, "reasonableness" is more difficult. The concept of
reasonableness features frequently in the definition of legal
rights or duties, and it is notoriously troublesome. However
it is also the way in which the new rules respond to each pupil's
individuality.
The legislation does offer some 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, proportionality is ultimately a
matter for the courts hence 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.
Let us take mobile phones as an example.
Their have been numerous calls to ban mobile
phones in schools following concerns raised after "happy slapping"
attacks upon teachers and the videoing of vandalism of school
premises. More subtly, mobile phones can be a disruptive
influence in the classroom, the sending and receipt of texts and
calls or game playing causing particular distraction to pupils.
So, can you confiscate mobile phones? If
so, how long for? Can you destroy them? Does the Act
protect you if you chose to do so?
It seems most unlikely that the destruction of
a mobile phone will ever be considered reasonable, but to
confiscate it would be. However, the lack of government
guidance in this area leaves teachers with little assistance and no
benchmark as to what one can consider reasonable.
When considering confiscation, a sensible
option is to measure the wrong you are seeking to right against the
act of confiscation itself to consider whether what you are doing
is proportionate. As an example, if a pupil is texting on a
mobile phone during a lesson and, ignores your requests not to do
so, it would be reasonable to confiscate the mobile phone.
But for how long?
The Act simply states that confiscation has to
be reasonable. Again, it would be prudent to apply the same
test – what wrong are you seeking to right? The pupil cannot
disrupt the lesson after it has finished and so it could be
proportionate to return the phone at that point. If there was
concern that texting would continue in other lessons, returning the
phone at the end of the school day could be proportionate.
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 and
whether the punishment fits the crime.
The lack of guidance means the answers to
these questions and others like them, will vary from school to
school, and will rely on the common sense of teachers
involved. Whilst this may be a good thing, it can leave
teachers vulnerable.
A note of caution: 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 not reasonable.
Inexplicably, the Act puts the burden of proving reasonableness
firmly on the shoulders of the teacher. In other words, if
you confiscate from a pupil and that pupil or that pupil’s parents
challenge you, it is for you to prove that you acted
reasonably.
There is a real risk that this legislation
creates more problems than it intended to solve. Providing
teachers with a power to confiscate and destroy without offering
guidance on how to use those powers has been problematic, but for
the most part has meant that teachers are either unaware of their
powers or opt simply not to invoke them. Indeed, a recent
survey carried out by The Teacher Support Network indicated that
80% of their respondents were unaware of existing powers to search
pupils!
The use of force
One point needs to be made clear at the start:
this is not a return to corporal punishment. Corporal
punishment is and will remain unlawful, and the new Act reiterates
this, to remove any possible doubt. Further, the Act does not
allow staff members to use force as a punishment. Instead the
use of force is allowed to stop a pupil:
- Committing an offence
- Injuring himself or another or damaging property
- Prejudicing the maintenance of good order and discipline at the
school
Again the concept of reasonableness is
involved. Only "such force as is reasonable" may be used.
In truth, most of this is not new. Staff
at schools have long had the power to use reasonable force to
prevent offending, injury or damage to property. Reiterating
these powers in the Act simply adds emphasis.
The novel aspect to the rules is the right to
use force to maintain "good order and discipline". This is also
couched in broad terms, and there is ample room for differences of
opinion on whether force would be justified in any given
circumstance.
Let us revisit the mobile phone
scenario. You decide to confiscate a pupil's mobile phone in
the classroom after they continually distract others with texts and
calls, possibly 'prejudicing the maintenance of good order and
discipline at the school'. The Act tells us that you can use
force to confiscate the phone. How much force should be
used? What if the pupil were to refuse to hand over the
phone? Is further force justified?
There is guidance available to assist in such
decisions. This guidance envisages two general sets of
circumstances when different levels of force can be used:
Firstly, where there is no risk of death or
serious injury to the pupil or those around him, a passive, gentle
approach is recommended. The guidance suggests that the
justifiable force to be used in these circumstances
includes:
- Passive physical contact – i.e. blocking a
pupil’s path or standing between two pupils;
- Active physical contact such as:
- Leading a pupil by a hand or arm
- Ushering a pupil away by placing a hand in
the centre of their back;
- In more extreme circumstances, using
appropriate restrictive holds, which may require specific expertise
or training.
Secondly, where there is a high and immediate
risk of death or serious injury, any member of staff would be
justified in taking any necessary action. Such situations
could include preventing a pupil from running off the pavement onto
a busy road or preventing a pupil from hitting someone with a
dangerous object, such as a glass bottle or hammer.
Whilst it is helpful for the guidance to set
out the two extremes – blocking the path of a pupil and taking any
necessary action to prevent death or serious injury - there is
somewhat of a gaping hole covering the remainder of circumstances
in between. It seems the guidance hopes to cover these with
the catch-all of advising restrictive holds be employed, following
appropriate training. This is of limited use.
It is safe to say that, along with a myriad of
other situations, our mobile phone example falls in this undefined
area as it is not life threatening, nor is leading a pupil by the
arm likely to result in control of the phone. So what do you
do? Can you consider using restraint techniques to remove the
phone thus maintaining good order and discipline? It is
likely that to do so would be disproportionate and therefore
unreasonable. In a recent case of R (C) –v- The Secretary of
State for Justice, the Court of Appeal agreed.
Whilst the facts of this case are removed from
a school setting – the use of force at a Secure Training Centre –
and the guidance different (Ministry of Justice guidance), the key
issue was on the point: Can one use restraint holds to
maintain good order and discipline? The Court of Appeal said
no, confirming that it was excessive and a breach of human rights
to do so, casting doubt on a teacher’s power to apply the same
principles in a school setting.
This power seems more of a hindrance than a
help. The guidance covers only very obvious situations and
the suggested use of restraint holds for other situations has to be
called into doubt following the recent Court of Appeal
decision.
One now wonders how often teachers will rely on these new
powers. Without clearer guidance, it is a high-risk
strategy. Misguided intervention, carried out imperfectly, is
likely to make matters worse. So as we embark upon a new
school year, the position remains unchanged: The powers are
there in principle, but are fraught with difficulty in practice.
This article was first published in Sec
Ed
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