Doug Melia

1. Legal Briefing on the Use of Reasonable Force in schools Edexcel Award Session1 of 2 Doug Melia

2. Law & Legislation Rights & Responsibilities Accounting for your actions Doug Melia

3. Do we need to know the Law? “We are all throwing the dice, playing the game, moving our pieces around the board, but if there is a problem a lawyer is the only person who has read the inside of the top of the box.” Jerry Seinfeld

4. Corporate Manslaughter & Corporate Homicide Act 2007 Health and Safety Offences Act 2008

5. “…..private firms managing people held in custody can be prosecuted for Corporate Manslaughter.” “…..they could be prosecuted if they failed to ensure the safety of someone in their care.” “…..examples could include……when someone has been restrained using an unauthorised or badly taught body hold.”

6. The Children Act 1989 1.(1) When the Court determines any question with respect to-. (a) the upbringing of a child;… the child’s welfare shall be the court’s paramount consideration. Defines a child as being a person under the age of 18 Until what age is someone considered a child in the eyes of the law?

7. What is a teacher’s duty? “A teacher’s duty is to take such care of the children in their charge as a careful parent would do” Williams v Eady 1893 “The standard of care generally expected of a teacher is that of a reasonably prudent parent, judged not in the context of his own home, but in that of a school” Lyes v Middlesex County Council 1962

8. Teacher’s power to search? A person who exercises a power <of search> under this section may use such force as is reasonablein the circumstancesfor exercising that power Section 8 Violent Crime Reduction Act 2006

9. Power to search pupils with consent School staff can search pupils with their consent for any item which is banned by the school rules. Force cannot be used to search for items banned under the school rules.

10. Power to search pupils without consent Prohibited items • Knives and weapons • Alcohol • Illegal drugs • Stolen items • Tobacco and cigarette papers • Fireworks • Pornographic images • Any article that has been or is likely to be used to commit an offence, cause personal injury or damage to property.

11. “Shanni needed to have 30 stitches put in at Sheffield Children's Hospital” “The department strongly advises schools not to search pupils where resistance is expected, but rather to call the police” DfES 2011 “Slashed at with a pencil sharpener” BBC News 2005/10/21 15:16:15 GMT

12. “You can’t touch me”“I’ll get you done”“I’ll sue you”“That’s against myHuman Rights”

13. Understanding Human Rights ABSOLUTE rights QUALIFIED rights • (A selection for the example) • A child’s right to education and to play • Right to liberty • The right to manifest your religious belief • Right to privacy • (Only 3) • The right to Life • The prohibition of torture • The right to hold a religious belief John Wadham QC “Understanding Reasonable Force” Interview 2011

14. The consequences of “latent” failures “Management said they felt they couldn’t lock away the knives” “For fear of breaching the service user’s Human Rights”

15. Article 3 European Convention Standard United Nations Convention on the Rights of the Child. “In all actions concerning children, the best interests of the child shall be a primary consideration.”

16. Examples of when force can be used • To remove disruptive children from the classroom where they have refused to follow an instruction to do so • Prevent a pupil behaving in a way that disrupts a school event or a school trip or visit • Prevent a pupil leaving the classroom where allowing the pupil to leave would risk their safety or lead to behaviour that disrupts the behaviour of others

17. Technology teacher cleared Robert Williamson was accused of hitting the hand of the pupil, who cannot be named for legal reasons, during a design and technology lesson. The 63-year-old said the pupil was about to drill a hole in a plastic clock face but was not holding the material firmly. He told Torbay Magistrates he put his hands on her hand to stop the plastic spinning as it could have shattered and caused an injury. Magistrate "We find that this was an intentional act by Mr Williamson in that he wanted to prevent an accident to a pupil." This is Cornwall Dec 2008

18. Examples of when force can be used • prevent a pupil from attacking a member of staff or another pupil, or to stop a fight in the playground • restrain a pupil at risk of harming themselves through physical outbursts

19. Defences to Assaults 12.2 Particular care must be taken in dealing with cases of assault where the allegation is made by a “victim” who was, at the time, engaged in criminal activity himself. CPS Charging Standard 26 April 1996

20. Defences to Assaults 12.4 Where the use of force in any of these circumstances is reasonable, the “assailant” has an absolute defence and charges relating to the assault should not be brought. CPS Charging Standard 26 April 1996

21. Honestly Held Belief The general approach of the law is that it allows such force to be used as is reasonable in the circumstances as the defendant believes them to be, even if his belief was a mistaken one and (if so) even if his mistake was an unreasonable one. (Williams (1987) 3 All ER 411, CA; Beckford v R (1987) 3 All ER PC; cf. A-G for Northern Ireland’s Reference (No.1 of 1975) (1976) 2 All ER 937, HL).

22. Honestly Held Belief It is recognised that a person defending himself cannot weight to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessarythat would be most potent evidence that only reasonable defensive action had been taken. (Palmer v R [1971] 1 All ER 1077, PC).

23. Single person interventions? • Risk to yourself • Risk to other students • Risk to the child • Manual Handling considerations • Procedural guidance

24. Article 3 European Convention Standard Facilities responsible for the care or the protection of children shall conform with the standards established by competent authorities, particularly in the area of safety, health, in the numberandsuitabilityof their staff as well as competent supervision. (3) United Nations Convention standard on the rights of the child

25. Physical Restraint Lord Lamming CBE Chief Inspector Social Services Inspectorate, Department of Health “Every effort should be made to secure the presence of other staff to ensure that any action taken is both safe and successful. It would be an error of judgement if a member of staff tried to restrain a young person without proper assistance and in so doing caused injury to himself or the young person because the intervention was handled ineptly.” The Control of Children in the Public Care: Interpretation of the Children Act 1989 (11)

26. Restriction of Liberty Question Could you ever lock a door or create a barrier to prevent a child leaving a room or part of a building?

27. Restriction of Libert The Children Act 1989 8.10. any practice or measure which prevents a child from leaving a room or building of his own free will may be deemed by the Court to constitute a “restriction of liberty”.

28. Article 37 European Convention Standard (Torture and deprivation of liberty) State parties shall ensure that ; b) No child shall be deprived of his or her liberty unlawfully or arbitrarily…”

29. Restriction of Liberty Lord Lamming CBE Chief Inspector Social Services Inspectorate, Department of Health “in certain circumstances physical restraint can and should be used. It is also reasonable to bolt a door temporarily to restrict a young person’s mobility, in order to win time to call for help from other staff.” The Control of Children in the Public Care: Interpretation of the Children Act 1989 (10)

30. Who has the power to use force? All members of school staff are authorised by law to use force. Section 93, Education and Inspections Act 2006

31. What is Reasonable Force? • The requirement to use force which is reasonable in the circumstances involves two issues: • Was the force used necessary(or honestly believed to be necessary) • Was the force used proportionate to the evil to be avoided?

32. An example of proportionality A 15 year-old boy is located in a mathematics block situated on the 2nd floor of a school. The boy attempts to jump out of the window. Below him is a concrete pavement which would seriously injure or could possibly kill him. The staff attempt to stop him and in doing so end up by accident, breaking the boys arm. Were the staff’s actions ‘proportionate’ in so much as the harm caused to the boy prevented a greater harm from occurring?

33. Minimum Force “ No mention of minimum force is made in statute or common law; indeed this term appears to be a police invention.” Good Practice Guide to Officer’s Safety Produced by the Directorate of Public Affairs June 1995

34. Assaulted teacher is awarded £190,000 Judith Waugh was talking to her head teacher when the 14-year-old boy gouged her face with his nails. Her attacker, who can be identified only as D, was known to suffer from severe behavioural problems. The judge ruled that the London Borough of Newham, which denied liability, was negligent for not revealing the need for fuller restraint of the pupil. Daily Mail, Wednesday March 27, 2002

35. www.safer-handling.co.uk Questions? @saferhandling Douglas Melia Safer-Handling