The Department for Education's advice for schools on searching, screening and confiscation has been around for a number of years. However, on 18 January 2018 it was updated and the latest version can be found here.
What is new?
The impetus for this update was to ensure the searching and screening advice is in line with the DfE's Preventing and Tackling Bullying guidance, which was amended last year. In particular, the section on "Statutory guidance for dealing with electronic devices" has been expanded. The section sets out that staff may lawfully examine data or files on an electronic device that is:
- Prohibited by the school rules; or
- That [the school] reasonably suspect has been, or is likely to be, used to:
- commit an offence; or
- cause personal injury or damage to property.
Previously, the guidance suggested that a school could "erase any data or files, if they think there is a good reason to do so". However, the section now expressly states that if the member of staff has reasonable grounds to suspect the device contains evidence in relation to an offence, or contains a pornographic image of a child or an extreme pornographic image, such material should not be deleted and the device should be given to the police as soon as reasonably practicable.
In many ways this is common sense, but it is always welcome to have such points clarified. This is also a good opportunity for schools to check that their relevant policies on searching, screening and confiscation reflect the latest guidance.
A reminder of the main provisions
At 16 pages, the guidance on searching, screening and confiscation doesn't take too long to read and digest. However, here is a brief summary of its key provisions for those who want a quick refresh:
- With consent – schools can search pupils with their consent for any item. Schools can apply an appropriate disciplinary penalty to pupils who refuse to cooperate with searches.
- Without consent – a headteacher or member of staff authorised by a headteacher can carry out a search without consent if they have reasonable grounds for suspecting a pupil has a prohibited item in school (eg knives, alcohol, stolen items etc). The person conducting the search must be the same sex as the pupil and there must be a witness present.
The rules on screening are more flexible than searching, since it usually involves a pupil being checked by a metal detector and there is no physical contact. The consent of the pupil is not required; nor is there any prior need to suspect a pupil of having a weapon.
If a pupil refuses to be screened, the school may refuse to have the pupil on the premises.
School staff can seize any prohibited item found as a result of a search, as well as anything they consider harmful or detrimental to school discipline. Certain items, such as controlled drugs or pornographic images should, in most cases, be passed to the police. In respect of other items, staff should use their professional judgement to decide whether to return it to the owner, retain it or dispose of it.
If you require further information on anything covered in this briefing please contact Jonathan Eley or your usual contact at the firm on 020 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, February 2018