Licence to search

The Violent Crime Reduction Bill completed its way through Parliament this month. It applies in England, and in Wales if the assembly makes the decision to activate it.

It gives headteachers and principals the power to authorise staff to use reasonable force to search students if they are suspected of carrying a knife or other offensive weapon on school/college premises or where students are under the authority of staff, for example on a school trip.

Teachers can be authorised, but not instructed, to carry out such a search. The search must be conducted in the presence of another adult of the same gender as the person being searched.

Most heads and principals would not attempt to use this power but would send for the police and endeavour to contain the situation until they arrived. This is the response ASCL would advise in the majority of situations.

However, there may be circumstances in which it is be necessary and possible to use this power. Some emergencies will not wait for the police and the best course of action will be to act without them. If a child is small and the staff are sufficiently large to contain any violence, then it may be practicable.

The law is intended to give that discretion and to guard teachers from civil or criminal proceedings if they act in good faith to protect other pupils. It does not place an obligation on heads to use that power.

As to reasonable suspicion, reasonable has a number of legal meanings.

In civil cases it may be what a 'common-sense person' would think and/or do. It may be the range of things that the majority of people in a profession would do when confronted with a professional problem.

In criminal cases, reasonable suspicion is closer to the 'common-sense' meaning. One case, for example, turned on the 'smirk' on the face of a young man coming out of a known drug-dealer's house.

High profile cases have made it clear that a very wide range of pupils may decide to carry and use a knife. They are not necessarily known trouble-makers. It may equally be a quiet child who 'cracks' and resorts to deadly force.

Bearing this in mind, a head is likely to be found to be acting on reasonable suspicion if a strong rumour that a pupil is carrying a weapon reaches staff. That someone should actually have seen the weapon will not be necessary.

'Reasonable force' is normally a defence against a charge of assault or in a plea of self-defence. The easiest way of thinking of it is as the force necessary to do the job: whether it is ejecting a trespasser; defending yourself against an attacker; or restraining a child. It must be sufficient to do the job but not contain an element of taking the law into one's own hands.

Where a child is passively resisting a search, it may simply be the force necessary to pull the pupil's hands out of his pockets. It may also, however, be the force needed to subdue a pupil who is lashing out.