As schools are now back to a new form of normality, many of the day-to-day issues that teachers have to tackle are returning, too.

One area that we seeing a rise in queries on is around the law on confiscation - the seizure and retention of items from pupils. 

This is no surprise, as confiscation is an important strategy for schools to use when dealing with matters of order and discipline - and one that comes with plenty of legal issues, too.

Understanding the legal basis and scope of these powers will minimise the risk of a successful challenge, and help the school in meeting its duty to promote good behaviour and safeguard the health, safety and welfare of the school community.

Items prohibited in schools

It’s good to start with a clear breakdown. The law prohibits the following items from being in schools:

• Knives and weapons
• Alcohol
• Illegal drugs
• Stolen items
• Tobacco and cigarette papers
• Fireworks
• Pornographic images
• Items the staff member reasonably suspects has been (or is likely to be) used to commit an offence, or to cause personal injury to, or damage to the property of, any person
• Items identified in the school rules (ie, behaviour policy) as items that can be searched for

In respect of the last of these, this is how it is described in legislation, but essentially this relates to banned or restricted-use items such as vapes or mobile phones - where, for example, they may be banned from school entirely or only allowed to be used during certain times.

These restrictions need to be set out very clearly in the policy (potentially with modifications for sixth form students, if applicable), as well as identifying them as an item that can be searched for without consent.

Searching pupils

This is where things start to get tricky, so it’s worth having a clear breakdown of what is and what is not allowed.

A staff member can search a pupil with their consent (not their parent’s consent) for any item.

Consent can be obtained simply by asking the pupil to turn out their pockets, and them agreeing to do this. It does not have to be in writing. 

However, the ability to give consent will be influenced by age, maturity and other circumstances, and one issue that arises is that consent freely given can always be withdrawn.

Meanwhile, the headteacher (and staff authorised by the headteacher) can only search a pupil without their consent where they have reasonable grounds for suspecting they are in possession of a prohibited item. 

It will be for the searcher to decide and justify, if necessary, that they had reasonable grounds, which should be recorded in their report or statement following the incident. 

This may be where they have heard other pupils talking about the item, or the pupil is behaving in a way that suggests they are concealing something.

Screening pupils

Some schools also choose to screen pupils randomly for drugs or weapons. 

While using a screening arch or wand can be done without their consent, searching them or their belongings without reasonable grounds to suspect they are in possession of a prohibited article does require consent. As such, it cannot be done as part of a random screening operation. 

Schools also need to be careful how they deal with a refusal to give consent. 

This could be used as evidence supporting reasonable grounds for suspecting they are in possession of a prohibited article, therefore permitting a without-consent search. But this should not be an automatic assumption. 

The staff member will need to be clear they have reasonable grounds, and why this is.

Schools also need to exercise caution before sending a pupil home who has refused to be screened or to consent to a search, and there are no reasonable grounds for suspecting they are in possession of a prohibited article, as this could be deemed an informal exclusion.

However, the DfE’s guidance on Searching, Screening and Confiscation does suggest that if a pupil refuses to be screened, the school can refuse to have them on the premises.

In our view, while that could happen if screening was a condition of entry (ie, at the school entrance at the start of the school day), it is unlikely to be lawful to send home a pupil who refuses to be screened having been taken from a lesson for a random screening operation.

Risks and liability

In order for the seizure, retention, disposal and/or confiscation to be lawful, the search itself must have been lawful. 

This is important because Section 94 of the Education and Inspections Act 2006 provides for a defence from liability in proceedings for any damage or loss arising from confiscation, where this was utilised as a disciplinary sanction.

The DfE’s guidance also sets out the specific rules that must be followed during searches (eg, the sex of the searcher, the need for a witness and their sex, the location of the search, and what may be searched) and we recommend these requirements are clearly set out in the school behaviour policy so staff are fully aware beforehand.

Failing to follow correct processes could result in complaints and might be raised in representations challenging a decision to exclude.

It may also give rise to grounds for a disability discrimination claim or judicial review proceedings, which are stressful, time-consuming and costly. 

Seizure and confiscation of items

If an item is found, the next step is to decide what to do with it.

Under their general powers of discipline, staff may confiscate, retain or destroy/dispose of any item belonging to a pupil as a disciplinary sanction where it is fair, reasonable and proportionate to do so, taking into account their age, special educational needs and/or disability, and religious requirements. 

It should be set out in the behaviour policy that confiscation as a sanction is different to confiscation of prohibited articles, alongside information about other sanctions used.

Staff can use their discretion to confiscate, retain or destroy/dispose of any item that is not prohibited found during a search with consent. 

Staff must seize prohibited items or items that are evidence in respect of a criminal offence, and what must be done with them is contained in the Education and Inspections Act 2006 and in statutory guidance set out in the DfE’s Searching, Screening and Confiscation guidance. 

Schools should consult this mandatory statutory guidance before deciding what to do with a prohibited item or an item that is evidence of a criminal offence.

When retaining items with the intention of returning them, schools could be liable for any damages or loss if they are negligent in their care of these items (eg, storing them in a place where it was foreseeable they could be damaged or stolen, such as an unlocked cupboard).

It is also worth noting items seized may need to be given to the police.

If so, schools should remember they are subject to civil, rather than criminal, standard of proof and evidential rules, so it is not the case that an item found during a procedurally flawed search would be inadmissible as evidence (although this would not prevent a parent from raising this in a complaint/representations about an exclusion).

This means that the school could still potentially use it as evidence before imposing a sanction, including an exclusion, but this would not be without risk of challenge and schools would likely need legal advice in these cases. 

For any evidence involving a criminal issue, it would be for the police and the Crown Prosecution Service (CPS) to clarify under rules governing criminal procedure. But in our experience, the police do not seek to clarify the lawfulness of searches made by school staff when they take possession of items for use as evidence.

Electronic devices

The position is a little more complex around electronic devices such as smartphones and tablets, which may not themselves be evidence but may contain evidence in the form of data.

Devices can be seized where they are banned/restricted in the behaviour policy, or the searcher reasonably suspects it has been (or is likely to be) used to commit an offence, or cause personal injury or damage to property. 

After that, staff may examine it and delete data with good reason.  

To have a “good reason”, the searcher should reasonably suspect that the data has been/could be used to cause harm, disrupt teaching or breach the behaviour policy - for example, texting other pupils during lessons or sharing nude images.

Where there are reasonable grounds to suspect the device contains evidence of an offence, it must be given to the police without the data being deleted. 

Consent is not required to do any of the above.

Obviously, a device cannot be searched if it is locked and the pupil will not disclose the PIN or password.  Some of the data may also be encrypted. 

Schools cannot force pupils to disclose their PIN or password, but they can potentially impose a sanction for such a refusal (including retaining the mobile phone for a specified period of time) if this is clearly set out in the behaviour policy and the searcher is able to demonstrate they had a “good reason” to examine the device, as set out above.

The police have technical teams able to access data on phones (eg, photographs, text messages, WhatsApp/Messenger/Signal messages, Snapchat data etc) without a PIN or password.

Therefore, if the school suspects it contains evidence of criminal activity but the pupil will not disclose the PIN or password, it should be given to the police.

Conclusion

Overall, the key is for schools to have clear information in their behaviour policies on searching and confiscation, and have included items that are banned or their use restricted. 

Staff should be given regular reminders about the requirements and encouraged to access the statutory guidance as and when needed, to ensure common pitfalls are avoided.

Joanna Goddard and Nicola Tarmey work in the regulatory compliance team at leading national education law firm VWV