Allegations Against School Staff - Children, Schools and Families Committee Contents

Memorandum submitted by Paul Kaufman (Solicitor)

    —  This submission is concerned with the arrest of staff members under investigation; whether arresting staff members is appropriate; the implications of arrest.

    —  The submission is made by a solicitor with extensive experience of representing teachers under investigation by police.

    —  In summary it is submitted that staff are routinely arrested when it is inappropriate and that this has potentially serious adverse consequences for staff in relation to their morale, their civil liberties, any disciplinary inquiry and their future career.

    —  One case summary is included to illustrate the submission.


  I am a solicitor in private practice. I have specialised in criminal law for over 25 years. I am on a panel of solicitors instructed by the NUT to assist with teachers who are being investigated by the police in relation to alleged criminal offences. I have been on the panel for over 10 years. Cases are referred by the London Regional Offices and the Eastern Region of the Union. I deal with approximately 30 cases a year. I generally try to attend the police station in person. I have also personally represented teachers as an advocate in the Magistrates Court and Crown Court.


  There is no longer a distinction between arrestable and non arrestable offences. Teachers are therefore liable to be arrested in relation to all allegations of crime that are made, no matter how trivial. The criteria which the police should apply when determining whether arrest is appropriate are set out in Code G to the Police and Criminal Evidence Act 1984.


  Under Paragraph 2.1 in order for an arrest to be lawful the officer "must have reasonable grounds to believe that the person's arrest is necessary." The criteria for what may constitute necessity are set out in Paragraph 2.9(a)-(f). It is submitted that, other than in the most exceptional cases, none of the criteria apply to a teacher under investigation. Each of the criteria will be considered below in the context of a typical allegation and investigation. The criteria have, where appropriate, been paraphrased.

 (a) and (b)   To enable the name or address of the suspect to be ascertained.

  These details will invariably be easy to ascertain where a teacher is under investigation.

(c)   To prevent the suspect:

    (i) causing physical injury to himself or any other person;

    (ii) suffering physical injury;

    (iii causing loss or damage to property;

    (iv) committing an offence against public decency; and

    (v) causing an unlawful obstruction of the highway.

  It is highly unlikely that any of the above will be relevant in the case of a teacher. The police will only usually become involved some days or weeks after the teacher is made aware of the allegation. Any risk of physical injury to other pupils is usually precluded by the suspension of the teacher

(d)   To protect a child or other vulnerable person

  As above, the suspension of a teacher will answer any concern under this head.

(e)   To allow the prompt and effective investigation of the offence or of the conduct of the (suspect)

  In practice the great majority of interviews of teachers under investigation by the police do not take place until at least several days, or more usually several weeks, after an initial complaint has been made. The police will normally require some time to carry out enquiries. This will often involve conducting an interview of any child complainant or witness on CCTV using the Achieving Best Evidence (ABE) protocol. It is only after the initial investigation has been conducted that arrangements will be made to interview the suspect. Consequently this head does not apply to the great majority of cases. On the contrary, the common complaint of teachers is that investigations take too long.


  In my experience the majority of teachers under investigation are not arrested by the police. However, a significant number of teachers are arrested. Based on my experience there are broadly speaking three sets of circumstances:

(a)   Teachers who are not arrested

  The police need to record an interview of the teacher under caution. However, they are prepared to treat the teacher as a "volunteer." Arrangements are made for the teacher to attend for interview by appointment. The interview can take place at a police station or at any other facility. As the teacher is not arrested there is no need for a custody office, booking in procedure, etc. This approach is sometimes referred to as "Caution plus three." That is the suspect is cautioned and advised of their three rights, ie that they are not under arrest and are free to leave the police station; they may obtain free and independent legal advice; they have the right to speak to a solicitor on the telephone.

(b)   Teachers who the police initially intend arresting where the police are persuaded this is not necessary

  There are a significant number of cases where the police indicate in advance that it is their intention to arrest the teacher when the teacher attends the police station by appointment. In a number of these cases it has been possible to persuade the police that this is not necessary. The police have then proceeded by treating the teacher as a volunteer as per (a) above. This never appears to have created a problem for the police. On the contrary the approach in (a) is more straightforward procedurally, involves less manpower (no custody officer is required), is less confrontational and is quicker. It is reasonable to assume that teachers who are not represented, or where their representative is less proactive, are being routinely arrested simply due to the decision to arrest not being effectively challenged.

(c)   Teachers who are arrested

    (i) There are very occasionally extremely serious allegations made against teachers where it is imperative for a prompt and effective investigation that the police arrest the suspect. Cases of this type are exceptional. They generally comprise cases where there is a genuine risk of a teacher disposing of evidence or otherwise interfering with the course of the investigation for example by talking to witnesses.

    (ii) Teachers who are arrested simply because the police take the view that the allegation is serious and/or that the evidence of an offence being committed is credible. These are not appropriate criteria under Code G.


  The police do not always give a cogent reason to justify the arrest of a teacher. The reasons which are sometimes given, and the fallacy of those reasons, are as follows.

(a)   If the teacher is not under arrest then there is nothing to stop them from walking out of the police station at any time. This would include terminating an interview at will.

  In practice this simply does not happen. Teachers will happily attend by appointment. They wish to give their account. As professional persons they appreciate that it would be counterproductive to walk out during the course of an investigation.

(b)   It is important from the perspective of all parties that the police are seen to be carrying out a thorough investigation as they would in any criminal investigation.

  This is not a valid ground under PACE. In practice the police can and do conduct thorough investigations where teachers are not arrested.

(c)   The allegation is serious.

  This is not a valid ground under PACE.

(d)   The allegation is credible.

  This is not a valid ground under PACE.


  The physical process of arrest is demeaning. It follows automatically from an arrest that fingerprints and a photograph will be taken. A scraping is taken from the inside of the suspect's mouth for a DNA sample. Arrest by definition involves depriving a suspect of their liberty. There are occasions when they may be placed in a cell. In short, a teacher is treated like any other criminal and will often feel that they are being regarded as an ordinary criminal.

  It is invariably the case that teachers subject to suspension and a police investigation are upset and anxious. The process of arrest exacerbates their upset and anxiety and adds a strong sense of unfairness.


  This issue is clearly identified in Code G Paragraph 1.

  Paragraph 1.2 "The right to liberty is a key principle of the Human Rights Act 1998. The exercise of the power of arrest represents an obvious and significant interference with that right."

  Paragraph 1.3 "The use of the power must be fully justified and officers exercising the power should consider if the necessary objectives can be met by other, less intrusive, means. Arrest must never be used simply because it can be used..."

  In my experience teachers who have been arrested feel a strong sense of grievance that their civil liberties have been infringed. They are acutely aware of the stigma attached to having been arrested, whether or not such stigma is justified. In common with many others, they resent the fact that the police retain their fingerprints, photograph and DNA sample even though they have not been charged with a criminal offence.


  It is frequently the perception of teachers that the fact of their arrest is likely to place them at a disadvantage in any disciplinary proceedings. This is a reasonable perception. As explained above, the decision to arrest frequently reflects a view on the part of the police involved in the investigation that the evidence of an offence having been committed is credible. It is reasonable to assume that a disciplinary tribunal will, consciously or otherwise, attach some importance to the police view of the evidence. There is a risk that this will colour their own assessment of the evidence even before they have commenced to consider it independently.


  It is frequently the perception of teachers that the fact of their arrest is likely to place them at a disadvantage in relation to their employment. The reasoning is similar to 8. above. There is a sense of stigma attached to having been arrested. There is a justified fear that the fact will be disclosed on an enhanced CRB check. There is a risk that a prospective employer will, consciously or otherwise, attach importance to the police perception that the credibility of the allegation merited the arrest of the teacher.


  Teacher x is accused of assaulting a child by pinning him against the wall in a corridor. The incident is captured on the school CCTV. The incident is witnessed at least in part by other staff and by children in the corridor.

  Teacher x is suspended following the allegation. The case is referred by the Union. Some weeks following suspension arrangements are made for Teacher x to attend the police station by appointment for interview. The investigating officer states that it is her intention to arrest teacher x. She is not prepared to change her decision in the light of verbal representations that this is not necessary. A letter is then sent to the Chief Superintendent at her police station in the following terms:

    By Fax:


    Dear Sir




    This firm acts for the above-named. Our client is a teacher. The case was referred to this firm by his Union, the NUT.

    Arrangements have been made for Mr X to attend your police station by appointment on Monday...... at 9.00am. It is the intention of the officer in the case to interview our client regarding an allegation of assault against a pupil at his school, XXXXXXX Secondary School.

    We write due to our concern at the indication given by the officer in the case that it is her intention to arrest our client upon his attendance at the police station. During the course of a conversation with the solicitor responsible for conduct of the case she made it clear that she is not prepared to change her view on this. However, she has failed to provide any satisfactory reason for this decision. The officer did state that, in her view, it was in the defendant's interests that he is arrested. We do not agree. We take the view that the arrest of a professional person in the circumstances of this case is inappropriate, totally unnecessary and demeaning.

    We respectfully remind you of the relevant codes of practice of which you are no doubt fully aware. The exercise of the power of arrest represents an obvious and significant interference with the right to liberty (Paragraph G:1.2). The power of arrest is only exercisable if the constable has reasonable grounds for believing that it is necessary to arrest the person under paragraph G2.9. We have been unable to identify any of the criteria under G2.9 which could possibly amount to a good reason for arresting our client.

    Mr X is a man of positive good character. He has been a teacher for XX years. He has taught at the school in question for X years. He has an unblemished teaching record.

    We understand that the youth, who is the complainant in this matter, has a history of violence. According to our client, he was summonsed to assist with an incident at the school where the complainant was fighting. Following our client's intervention he received serious threats of violence from the youth. The youth also threatened to summons other persons to exact violence on our client.

    It is our client's firm intention to attend punctually for interview. He has been anxiously awaiting his opportunity to set-out his account in interview. There is no suggestion at all so far as we are aware that our client had attempted to contact any witness or potential witness since the date of the incident on 00.00.08.

    We will be grateful if you could let us know on what specific ground under the PACE code it is intended to arrest our client. In the event that no satisfactory ground is provided we will advise our client regarding the action he may take in the event that he is arrested.

    The solicitor in the case is Paul Kaufman. We await hearing from you.

    Yours faithfully

    Wiseman Lee LLP

  No response is received to the letter prior to the appointment to attend the police station. The teacher attends punctually at the police station at the appointed time with his legal representative. The officer acknowledges and is aware of the contents of the letter to the Chief Superintendant. She indicates that it is her intention to proceed with an arrest in any event. Further verbal representations are made on behalf of the teacher that this is not appropriate. It is emphasised in the presence of the teacher that he has attended the police station to give his account and has no intention of leaving until he has done so. The arrest proceeds in any event.

  The verbal representations are repeated to the custody officer. She is not prepared to "de-arrest" the teacher. She is not prepared to take or attach a copy of the letter to the custody record as the custody record is now fully computerised and there is apparently no provision for doing so. She does agree to call the duty Inspector to review the decision to arrest.

  Further representations are made to the duty Inspector. He reviews the teacher's detention but is not prepared to change the teacher's status as a person under arrest. The police proceed to take the teachers fingerprints, DNA sample and photograph. His is then interviewed. He gives a full account, as he had always intended. He is then bailed by the police.

  At no point during this investigation is a cogent reason given under PACE for arresting the teacher. It will be noted that the police approach in this case was not that of just one aberrant officer. The approach was endorsed by both investigating officers, both of whom are experienced, by the custody officer, by the Inspector and, apparently, by the Chief Superintendant.

  This case is by no means an isolated example.


  Teachers should, in relation to police investigations, be treated as a special case for the following reasons:

    (a) Teachers are unusually vulnerable, perhaps more than any profession, to the making of false allegations of criminal conduct. This is reflected in the unusually large number of such allegations referred to the police and the fact that only a tiny proportion of these allegations result in a criminal conviction or caution.

    (b) The arrest of teachers is particularly damaging to their morale and to their career.

    (c) The arrest of teachers is in the great majority of cases unnecessary due to the way in which such investigations are usually carried out and the willingness of teachers to cooperate.

  It is therefore respectfully submitted that clear guidance should be given to Child Abuse and Investigation Teams to ensure that teachers are only arrested in those exceptional cases where this is necessary.

April 2009

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