/ VIOLENT CRIME REDUCTION ACT 2006
POWER TO SEARCH PUPILS FOR WEAPONS

Background

  1. The proposal to give head teachers the power to search pupils for weapons was first included in a speech by the Secretary of State for Education and Skills in November 2004. The issue of offensive weapons in schools had previously been considered by the DfES’s Working Group on School Security, on which the NUT is represented, following the fatal stabbing of Luke Walmesley in a Lincolnshire secondary school in 2003. The Bill was introduced into the House of Commons in June 2005.
  1. The Violent Crime Reduction Act received Royal Assent on 8th November 2006 and is due to come into force in May 2007.

What does the Act cover?

  1. Section 45 of the Act gives head teachers, and in any school, other staff so authorised by the head teacher, the power to search pupils for concealed weapons without their consent. The same powers apply in institutions within the further education sector, for example, sixth form colleges and Further Education colleges, as well as in Attendance Centres. Sections 46 and 47 of the Act refer.
  1. The Act further:
  • restricts the sale of replica guns;
  • introduces tougher sentences;
  • tightens the law on air guns; and
  • raises the age limit for buying knives to18.

Why did the Government decide that head teachers should be given this new power?

  1. The reasons given by the Government are set out below.
  • While it is illegal to carry knives, or other offensive weapons on or around school premises, a minority of pupils do take knives into schools. The exception to this is the Sikh kirpan, since the carrying of aknife for religious purposes is a statutory defence under Section 4 of the Offensive Weapons Act 1996. [1]
  • A 2004 MORI youth survey found that over 1 in 4 11-16 year olds reported carrying a knife. For excluded 11-16 year olds the figure was over half (57per cent). Two per cent of pupils reported taking a knife to school for ‘defensive reasons’ and 1 per cent for ‘offensive reasons’.
  • Pupils carrying knives may escape detection by refusing consent for school staff to search their bag or jacket or by disposing of the weapon while waiting for the police to arrive
  • The intention of the Government is to deter the minority of pupils who may be tempted to carry knives by making clear that the school has the authority to search them on reasonable suspicion.
  1. DfES draft guidance on the new power, however, makes clear that schools generally remain safe places and that the best way of keeping knives out of schools continues to be through education programmes. The power to search without consent is simply an option that is available to schools.

Summary of Section 45 of the Act (Power to Search Pupils for Weapons)

  1. Head teachers or in any school staff so authorised by the head teacher may, with reasonable suspicion and without consent, search pupils for weapons. The power includes searching where there are reasonable grounds to suspect that pupilsare in innocent possession of weapons. The power to search is neithera dutyfor headteachers nor formost of the staff they manage. Head teachers can, however, make it a duty for security staff. Head teachers cannot require teachers to undertake searches. If a teacher declines a head teacher’s request to search a pupil, this does not meant that a teacher is refusing to follow a reasonable instruction.
  1. Such a search may be carried out on school premises or elsewhere only if the member of staff has lawful charge of a pupil, for example on a school trip. In order to prevent allegations of abuse being made against teachers, persons carrying out searches:
  • must be of the same sex as the pupils to be searched;
  • may not require pupils to remove clothing, such as coats, shoes, boots, hats and pullovers - pupils must not be asked to remove socks, tights, trousers, skirts, shirts, blouses and tunics;
  • may do so only in the presence of at least one other member of staff who is also the same sex as the pupil;
  • may use such force as is reasonable in the circumstances.
  1. The NUT believes that where there is a substantial possibility that a pupil may violently resist a search, the police should be called immediately.
  1. ‘Reasonable force’ is not precisely defined in law but the DfES has stated that the relevant considerations in respect of ‘reasonable force’ would be that:
  • the degree of force used is in proportion to the seriousness of the behaviour or threat;
  • it takes account of the age, understanding and sex of the pupil;
  • it is reasonable to use force,only if the situation cannot be resolved without using it;
  • while holding, pulling or leading a pupil by the hand or arm is acceptable there should be no slapping, kicking, twisting or tripping;
  • any weapons seized should be handed over to the police as soon as possible – the NUT supports this duty to surrender weapons as quickly as possible, both for safety reasons and to help avoid arguments with parents.
  1. None of the above prevents a head teacher from asking a pupil to ‘turn out’ his or her pockets, or from searching his or her desk or locker.

Existing Powers to Search

  1. Set out below is information on the search powers of head teachers prior to the implementation of the Violent Crime Disorder Act.
  1. Head teachers may:
  • search a desk or locker without the consent of the pupil concerned;
  • search a bag or jacket with consent;
  • ask the police to undertake a personal search; and
  • introduce ‘non-contact’ screening with hand-held wands or through arches.

Non Contact Screening

  1. The power to screen without suspicion may help deter pupils from carrying weapons in the first place. The DfES announced on 16 October 2006 that schools have this power, without any requirement for new legislation. The DfES, in its draft guidance, advises that, should it be decided that such screening would be useful, it is recommended that:
  • occasional screening of randomly-selected pupils, for example a class or year group, should be enough to deter;
  • screening of all pupils should only take place in exceptional circumstances and/or for limited periods.
  1. If schools plan to use the power to screen, or the statutory power to search, headteachers should draw up a policy, as part of the overall behaviour policy. The NUT believes that local authorities should assist schools by providing model policies.
  1. If a pupil refuses to be screened, the head teacher may refuse to have that 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 refuses access, the head teacher is not then considered to have “excluded” the pupil. It is the duty of the pupilto comply with the rules upon which attendance is conditional.
  1. The DfES draft guidance advises that pupils may be screened in view of other pupils. The Government’s view is that such screening does not infringe privacy under the Human Rights Act and is lawful under a school’s statutory power to make rules which pupils must obey.
  1. Searches on suspicion and without consent can also start with screening. The ‘beep’ of a wand, showing it has detected metal might help the searcher to secure consent, cooperation or the surrender of the metal object detected.
  1. There are drawbacks associated with this type of screening; items such as keys, phones and jewellery may set off alarms, slowing down the whole screening process and wasting valuable time.

NUT VIEWS ON THE POWER TO SEARCH WITHOUT CONSENT

  1. The NUT agrees that the issue of knives, and other offensive weapons is a major problem in some schools, presenting serious risks to the health and safety of staff and pupils. The Union does, however, have concerns about the new power.

The Difference Between Powers and Duties

  1. The NUT’s concern has been that others may have an expectation that this is a duty rather than a power. Teachers and head teachers who are faced with difficult circumstances, and the need to make difficult decisions, may believe that they have a duty to do that which they have to power to do. School policies should therefore make clear that there is no duty upon school staff to search other than on such security personnel as may be appointed for the purpose.

Health and Safety Risks to Teachers

  1. The power of teachers to demand that pupils ‘turn out their pockets’ and surrender items for confiscation is longstanding. The Violent Crime Reduction Act 2006 introduced the power to make physical contact with pupils in order to conduct searches. Physical contact with pupils is a highly sensitive issue. Nevertheless, teachers and staff could be exposed to the risk of serious injury if weapons were to be used against them. School policies should include a reference to the training necessary for the head teacher and any designated staff in order to protect staff from such risk. Even where training has been received, where staff have any concerns about their safety when conducting a search, they are advised to refuse to undertake the search and to instead call the Police.

The Way in Which the Power to Search may be Delegated by the Head Teacher

  1. A search may be conducted by a head teacher, or by someone so authorised by the head teacher. This could be a teacher, a member of the support staff or a security contractor. The NUT believes that it is important that head teachers retain close control of the power to search, particularly in the case of security contractors. It is safer to authorise staff to conduct searches on a case specific basis, rather than handing out blanket authorisation. In certain cases, a security contractor may, for example, believe that a search is needed but the headteacher, given his or her greater knowledge of the pupil, may know a better and safer way to handle the situation and thus avoid a dangerous confrontation.
  1. Though DfES guidance suggests that search authorisations may be on a long term or permanent basis, it is the view of the NUT that case-specific approval for non-consensual searches should be sought from the head teacher. This does not conflict with the right of any member of staff, or contractor, where appropriate, to physically restrain a pupil without approaching the head teacher.
  1. Where such a system is not adopted, it is essential that any member of staff or contractor who is authorised to conduct searches acts strictly in accordance with the employer’s guidance and the framework set by the head teacher.

NUT Advice to Divisions

  1. It is important that in those schools in which it is considered desirable to make use of the forthcoming power to search, sensible and practical policies, which offer maximum protection to staff are adopted.
  1. Although the DfES guidance on interpreting the new power will, when finalised, prove useful in this respect, the guidance in its current draft form does emphasise the need for employers to draw up their own policies which schools can then adopt.
  1. NUT divisions are, therefore, urged to enter into discussion with their local authorities so that policies clearly reflect the principles set out below.

(a)Where staff are unsure as to whether it is safe to search pupils, they should be advised to err on the side of caution and call the police.

(b)Guidance should at the beginning clearly differentiate between ‘powers’ and ‘duties’.

(c)Head teachers must be made aware that, with the exception of security staff, they cannot direct staff to undertake searches.

(d)Advice on what constitutes ‘reasonable force’ is essential.

(e)No member of staff should conduct a search without first having received training. The NUT believes that local authorities should provide this training on a group basis since many schools will either not be able to afford it or will not have information about reputable trainers, approved by the local authority.

(f)Insurance issues should be carefully considered. The DfES, in its draft guidance, recommends that school employers should make sure that they are covered not just for claims by staff who are injured as a result of undertaking searches but also for where claims may be made against a member of staff who injures a pupil while conducting a search.

(g)The power to search without consent should be seen as a ‘last resort’ and only used if other options have been exhausted. This means that staff should first question a pupil, then, if appropriate, request that the pupil surrenders the weapon. If this strategy is unsuccessful, the pupil should first be given the opportunity to consent to a search before finally undergoing a search without consent, if it is considered safe to do so.

(h)Notwithstanding DfES guidance on long term or permanent search authorisation, the NUT believes that school policies should normally require case-specific authorisation by the head teacher.

[1] It is up to governing bodies and local authorities to decide whether to allow Sikh children to wear a kirpan in schools, taking into account both health and safety considerations and the possible impact of the Race Relations Act 1976. Some kirpans are as small as one and half inches long and can be sealed so that they cannot be drawn. Others are eight inches long. Further information on the wearing of kirpans can be found in the DfES guidance document, ‘School Security – Dealing with Trouble Makers’, which is available from the Teachernet website at