LEGAL ADVICE LEGAL ADVICE
Speakers’ Lighting fircores ner
“Learning is never done
without errors and defeat.”
Vladimir Lenin
Confiscation and use of force
“A teacher affects eternity;
he can never tell where his
influence stops.”
pavement onto a busy road or preventing a pupil from Henry Brooks Adams
hitting someone with a dangerous object, such as a
glass bottle or hammer.
While it is helpful for the guidance to set out the
“Teachers open the door, but
two extremes – blocking the path of a pupil and taking
any necessary action to prevent death or serious injury
you must enter by yourself.”
– there is something of a gaping hole covering the Chinese Proverb
remainder of circumstances in between.
It seems the guidance hopes to cover these with
the catch-all of advising restrictive holds be employed,
“The task of the modern
following appropriate training. This is of limited use.
It is safe to say that, along with a myriad of other
educator is not to cut down
situations, our mobile phone example falls in this
jungles, but to irrigate
undefined area as it is not life threatening, nor is leading
a pupil by the arm likely to result in control of the phone. deserts.”
So what do you do? Can you consider using restraint
CS Lewis
techniques to remove the phone thus maintaining good
order and discipline? It is likely that to do so would be
disproportionate and therefore unreasonable.
“A teacher is one who
In a recent case of R(C) vs The Secretary of State
for Justice, the Court of Appeal agreed. While the facts makes himself progressively
of this case are removed from a school setting – the use
of force at a Secure Training Centre – and the guidance
unnecessary.”
different (Ministry of Justice guidance), the key issue
Thomas Carruthers
was on the point: can one use restraint holds to maintain
good order and discipline? The Court of Appeal said no,
confirming that it was excessive and a breach of human
“What we want is to
rights to do so, casting doubt on a teacher’s power to
apply the same principles in a school setting.
see the child in pursuit
This power seems more of a hindrance than a help.
of knowledge, and not
The guidance covers only very obvious situations and
the suggested use of restraint holds for other situations
knowledge in pursuit of the
has to be called into doubt following the recent Court
of Appeal decision. child.”
One now wonders how often teachers will rely on
George Bernard Shaw
these new powers. Without clearer guidance, it is a
high-risk strategy. Misguided intervention, carried out
imperfectly, is likely to make matters worse.
“Time is a great teacher, but
So as we embark upon a new school year, the position
remains unchanged: the powers are there in principle, but
unfortunately it kills all its
are fraught with difficulty in practice. SecEd
12399_UNIS SYC 136.5X188_NW_B 16/10/07 09:58 Page 1
pupils.”
• Dai Durbridge is from education law firm Browne (Louis) Hector Berlioz
Jacobson. Visit www.brownejacobson.com
more problems than it intended to solve. Providing for differences of opinion on whether force would be
teachers with a power to confiscate and destroy without justified in any given circumstance.
offering guidance on how to use those powers has Let us revisit the mobile phone scenario. You
been problematic, but for the most part has meant decide to confiscate a pupil’s mobile phone in the
that teachers are either unaware of their powers or opt classroom after they continually distract others with
simply not to invoke them. texts and calls, possibly “prejudicing the maintenance
Indeed, a recent survey carried out by the Teacher of good order and discipline at the school”. The Act
Support Network indicated that 80 per cent of their tells us that you can use force to confiscate the phone.
respondents were unaware of existing powers to search How much force should be used? What if the pupil Size and strength are often useful.
pupils. were to refuse to hand over the phone? Is further
force justified?
The use of force
There is guidance available to assist in such decisions.
One point needs to be made clear at the start: this is not This guidance envisages two general sets of circumstances
a return to corporal punishment. Corporal punishment when different levels of force can be used.
‘
As an example, if a pupil is texting on a
mobile phone during a lesson and ignores your
requests not to do so, it would be reasonable to
confiscate the mobile phone
is and will remain unlawful, and the new Act reiterates First, where there is no r
’
So is friendly and approachable.
isk of death or serious
this, to remove any possible doubt. Further, the Act does injury to the pupil or those around him, a passive, gentle
not allow staff members to use force as a punishment. approach is recommended. The guidance suggests that
Instead the use of force is allowed to stop a pupil: the justifiable force to be used in these circumstances
• Committing an offence. includes:
• Injuring himself or another or damaging property. • Passive physical contact – for example, blocking a
• Prejudicing the maintenance of good order and pupil’s path or standing between two pupils.
discipline at the school. • Active physical contact, such as leading a pupil by a
Again the concept of reasonableness is involved. hand or arm or ushering a pupil away by placing a
Only “such force as is reasonable” may be used. hand in the centre of their back.
In truth, most of this is not new. Staff at schools have • In more extreme circumstances, using appropriate
UNISON has over 1.3 million members and is the largest union for school
long had the power to use reasonable force to prevent restrictive holds, which may require specific
and early years staff. And when we talk we need people to listen. But
offending, injury or damage to property. Reiterating expertise or training.
when we’re helping or advising individual members,we prefer the more
these powers in the Act simply adds emphasis. Second, where there is a high and immediate risk of
friendly one-to-one how-can-I-help-you approach.
The novel aspect to the rules is the right to use death or serious injury, any member of staff would be Tobecome a member and get the backing of many or the support of one,
force to maintain “good order and discipline”. This is justified in taking any necessary action. Such situations call 0845 355 0845 or visit www.unison.org.uk. UNISON – All for one.
also couched in broad terms, and there is ample room could include preventing a pupil from running off the
SecEd • September 11 2008 9
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