Section 242: Power of members of staff to search pupils for prohibited items: England
751.A head teacher or an authorised member of the school staff has a statutory power, under section 550AA of the Education Act 1996 to search a pupil or his possessions without consent if there are reasonable grounds for suspecting that the pupil is in possession of a weapon. This section extends this power to cover controlled drugs, alcohol and stolen property. There is a power to make regulations to add to the list of ‘prohibited items’.
752.It creates new sections 550ZA, 550ZB, 550ZC and 550ZD of the Education Act 1996 for England. These new sections re-enact the existing power in section 550AA of the Education Act and extend the power to enable searches to be made for controlled drugs, stolen items, alcohol, and other items specified in regulations where the member of staff has reasonable ground to suspect possession of a prohibited item. They give authorised members of staff a power to search where a pupil refuses a reasonable request to, for example, turn out their pockets, but do not impose any duty upon members of staff to carry out a search.
753.The new powers will be supported by guidance. The guidance will explain how the powers should be exercised by providing advice to schools on what they must and must not do if and when choosing to search a pupil or pupil’s possessions for a prohibited item; as well as good practice that can help those exercising search powers to ensure they comply with the law and make an effective search.
Section 550ZA: Power of members of staff to search for prohibited items: England
754.Subsection (1) specifies that the power may be used only where a member of staff has reasonable grounds to suspect that a pupil has with him or her, or in his or her possession, a prohibited item. It also provides that a person may carry out a search only if he or she is the head teacher of the school, or he or she has been authorised by the head teacher to carry out the search.
755.Subsection (3) sets out which items are prohibited and hence may be searched for. There is already a power in 550AA to search for the items in paragraphs (a) and (b). The items in paragraphs (c) to (e) are the additional items, and paragraph (f) provides a regulation making power to prescribe additional items. Regulations made under this paragraph will be made using the affirmative resolution procedure.
756.Subsections (4) and (5) define what is meant by “stolen”, “member of staff” and “possessions”.
757.Subsection (6) provides that the powers in 550ZA, 550ZB and 550ZC do not restrict any common law, or other statutory, powers members of staff have to search pupils and their possessions.
Section 550ZB: Power of search under section 550ZA: supplementary
758.Section 550ZB sets out who may carry out searches and how searches must be conducted.
759.Subsections (1), (2) and (3) provide that only head teachers and authorised members of staff may conduct searches, and that a member of staff may have (a) a general authorisation to search, for example a member of staff may be authorised to search for any prohibited item at any time; (b) be authorised to conduct a particular search, for example given authorisation to search a particular individual in a particular circumstance; or (c) be authorised to conduct particular types of searches, for example given authorisation to conduct searches for some prohibited items (but not others), or where a particular set of circumstances arise. Subsection (3) provides that a headteacher may not require anybody other than security staff to conduct a search. This means teachers can never be placed under any obligation to search a pupil.
760.Subsection (4) stipulates that a search may be carried only out on school premises or where the member of staff has lawful control or charge of the pupil. These powers apply only in England; they therefore do not apply on school trips to other countries.
761.Subsection (5) provides that reasonable force may be used in executing a search.
762.Subsection (6) states that a search of a pupil may only be made by a person of the same gender as the pupil and in the presence of another member of staff. Where reasonably practicable, the member of staff witnessing the search must also be of the same gender as the pupil. It also provides that the person carrying out the search may not require the pupil to remove any clothing other than outer clothing (as defined in subsection (8)).Subsection (7) states that a pupil’s possessions may be searched only in the presence of the pupil and another member of staff.
763.Subsection (8) defines “member of the security staff” and “outer clothing”.
Section 550ZC: Power to seize items found during search under section 550ZA
764.Section 550ZC sets out the powers members of staff will have to seize and dispose of any prohibited items.
765.Subsections (1) and (2) provide for the person carrying out the search to seize any prohibited items and any other items suspected to be evidence of an offence found during the search, and to use reasonable force when exercising this power. This would allow the person conducting the search to not only seize prohibited items such as weapons, drugs, alcohol and stolen items but could for example allow them to seize any non-prohibited items they find whilst conducting the search which might be evidence in relation to any other unconnected offence.
766.Subsections (3) to (9) state what may or must be done with items that are seized.
Where a person conducting a search finds alcohol, they may retain or dispose of it.
Where they find controlled drugs, these must be delivered to the police as soon as possible, unless there is a good reason not to do so — in which case the drugs must be disposed of.
Where they find stolen articles, these must be delivered to the police unless there is a good reason not to do so — in which case they must be returned to the owner. These articles may be retained or disposed of where returning them to their owner is not practicable.
Where they find an item which has been added to the list by regulations made under section 550ZA (3)(f) there is a further regulation making power to prescribe what must or may be done with it.
767.In determining what is a “good reason” for not delivering items to the police, regard must be had to guidance issued by the Secretary of State.
768.Any weapons or items which are evidence of an offence must be passed to the police as soon as possible. Except that, where a person searching for a specific prohibited item, or a prohibited item specified in regulations, finds evidence of an offence in the form of another prohibited item, the item found will be dealt with in accordance with any specific provision made for that item or any provision specified in regulations. So, for example, in a case where a person searching for alcohol finds controlled drugs, the drugs must be delivered to the police as soon as possible, but there will also be a discretion to dispose of them.
769.Subsection (10) provides that the powers and duties relating to what must be done with any alcohol, controlled drugs, stolen articles and weapons seized apply to items reasonably suspected to be alcohol, controlled drugs, stolen articles and weapons.
Section 550ZD: Section 550ZC: supplementary
770.Subsection (1) provides that the Police Property Act 1987 applies in relation to items seized. The Act enables an application to be made to a magistrates court for an order that property in possession of the police be returned to its owner.
771.Subsections (2) and (3) provide that, where a person conducting a search, lawfully seizes, retains or disposes of an item seized under section 550ZC, they shall not be liable for the seizure, loss or disposal, or any damage arising. These provisions replicate provisions in section 94(2) of the Education and Inspections Act 2006. Subsection (3) of section 242 therefore disapplies the provisions in that section in relation to items seized under section 550ZC.
772.Subsection (4) provides that subsections (2) and (3) do not prevent a person who has seized items under section 550ZC from relying on any other available defence in proceedings.
773.Subsection (5) provides that the provisions in section 550ZD(1)- (4) may be made to apply in relation to any other items added to the list of ‘prohibited items’ by regulations.
774.Subsection (2) of section 242 amends section 569 of the Education Act 1996 to provide that regulations made under section 550ZA or 550ZC are subject to the affirmative resolution procedure.