Confiscation of inappropriate items: What the law now provides
3.8.1 The EIA 2006 provides two things. First, the
overall power to enforce disciplinary penalties, described in section 3.3 of this guidance, would cover the use of
confiscation as a disciplinary penalty (sanction). That includes seizure and
also, as appropriate, the retention and disposal of certain items. As with
other sanctions, the sanction of confiscation must be applied in a reasonable
and proportionate way. But it would be entirely proper for a school to include
confiscation as one of the disciplinary measures that might be applied as part
of the school's behaviour policy.
3.8.2 Second, the Act provides a member of staff with a specific statutory defence if he or she proves that the seizure, retention or disposal was lawful. Unauthorised seizure, retention or disposal of a pupil's property interferes with that pupil's rights under Article 1 of the First Protocol to the European Convention on Human Rights, which guarantees entitlement to peaceful enjoyment of one's possessions. It also interferes with the pupil's rights under domestic law.
A consequence of this is that a teacher or other member of staff may only seize, retain or dispose of a pupil's property if he or she has authority to do it. The Education and Inspections Act 2006 provides that authority when the confiscation is a lawful disciplinary penalty. It is for the staff member confiscating to show the legality of the confiscation since he or she has made the decision to interfere with the property. If authority can be shown, the staff member has a defence to all proceedings against him or her and is not liable for any damage or loss arising.
3.8.3 For the confiscation to be lawful it must be proportionate, necessary in a democratic society and in pursuance of a legitimate aim. Generally the aim pursued in confiscating property is maintaining an environment conducive to learning, one which safeguards the rights of other pupils to be educated.
However, proportionality is very relevant, and that in turn depends on the value of the property. If a pupil is playing music loudly on a personal music-player, it is likely that total destruction of the device after it has been seized is disproportionate, which would make such a step unlawful. Taking the device and returning it at the end of the school day is much more likely to be a proportionate response. On the other hand, if a paper ball or piece of chewing gum has been confiscated, disposal of the item is likely to be a proportionate response.
3.8.4 A separate legal provision in the Violent Crime Reduction Act 2006, inserted in the Education Act 1996, makes it lawful for certain school staff to search suspected pupils for knives or other weapons without consent. It also deals with the seizure of items found during the course of a search. Associated guidance sets out that schools can also screen pupils without suspicion using electronic means such as wands or arches.
3.8.5 Schools should note, however, that the legal power for school staff to search pupils currently only extends to weapons. A pupil might reasonably be asked to turn out their pockets or to hand over an item such as a personal music-player that is causing disruption, and the school might use its legal power to discipline if the pupil unreasonably refuses to cooperate. However, if it is felt necessary for a pupil to be searched for (say) illegal drugs or stolen property, that should be done by the police rather than school staff using the appropriate powers available to them.
3.8.6 Schools should also note that, while confiscation of a mobile phone is legitimate, searching through a phone or accessing text messages without the pupil's permission is not. In some circumstances it may be reasonable for a member of staff to ask a pupil to reveal a message for the purpose of establishing whether cyberbullying has occurred, for instance, but if the pupil refuses then the member of staff should not enforce the instruction. The staff member can, however, legitimately issue a disciplinary penalty for failure to follow a reasonable instruction.
Published: 10 April 2007
