On 18 January 2018, the DfE updated the searching, screening and confiscation guidance for headteachers, school staff and governing bodies.
The guidance sets out the power schools have when searching pupils, both with or without consent, and their right to confiscate items found during the searches.
With consent – school staff can search a pupil for any item if the pupil agrees to this. If a pupil refuses to co-operate, the school can apply an appropriate punishment as set out in the school’s behaviour policy.
Without consent – only headteachers and school staff (with authorisation from the headteacher) can search a pupil without consent, where there is ‘reasonable grounds’ to believe the pupils has a prohibited or banned item, such as a knife. The staff member searching must be of the same sex as the pupil and the search must take place in the presence of a witness (the only exception being where there is a risk that serious harm will be caused if a search is not conducted immediately).
Schools’ powers to screen pupils are more flexible. A school may require all pupils to undergo screening, such as a walk-through metal detector, regardless of any suspicion of a particular pupil carrying anything banned or harmful.
Screening that requires no physical contact is subject to different conditions than those applicable to searching pupils without consent. If it is part of the school’s behavioural policy to screen pupils, a refusal from a pupil would give the school the power to prevent that pupil from entering the premises.
Following a consensual search, school staff can use their discretion to confiscate, retain and/or destroy any item found, as long as this is reasonable in the circumstances.
Where a search is conducted without consent and an item is found, staff can seize anything they have reasonable grounds for suspecting is a prohibited item.
Schools do not have to notify parents before a search takes place. There is also no legal requirement to record any searches that have taken place. However, where alcohol, illegal drugs or potentially harmful substances are found, it is good practice to inform the individual’s parents or guardians, even though there is no legal duty to do so.