It’s a bust

In today’s SMH (in fact the story was first published yesterday though a small detail about the identity of the school seems now to have been removed):

A 16-year-old charged with supplying drugs has been denied bail at Bidura Children[‘]s Court this morning after the magistrate expressed concern about the possibility of further offences.

We are told (emphasis added):

The boy’s inner-city school principal saw him arriving late for school about 11.30am yesterday and demanded to search his bag.

The boy gave permission and police allege the principal found 94 tablets, believed to be ecstasy, with an estimated street value of about $3000.

Tell me the boy had a choice.

This sort of statement instantly arouses my suspicion. In the first place, it inevitably comes from the police and then from the principal. That the police say this indicates that they know that there is an issue here.

There is a suppression order on the identity of the school which necessarily extends to the identity of the principal, but I have been told enough about the principal in question to raise considerable doubts in my mind. There is a discretion to exclude evidence which has been improperly obtained. Evidence obtained by an unlawful search would be such evidence, and there must be at least an argument that this extends to evidence obtained by a threat: obviously there is a range of at least implicit threats in the situation where a principal asks to search a boy’s bag. If he knew he had the drugs in the bag, why would he have agreed to the search? On the other hand, he might just have thought the game was up, and that he was inevitably “busted.”

It is true that in some circumstances (eg: “Who nicked Jones’s ruler?) teachers have some powers of search which arise from their position in loco parentis and their necessary power to impose discipline in a school, though the old cases about teachers’ powers to detain or administer corporal discipline may not all stand up to contemporary scrutiny. Given that the boy was just on his way into the school, it’s not clear whether the usual rationale for the power of search arose, and that the boy couldn’t have just turned around and run straight out, albeit that this may have meant that he could never return.

He may well now be wishing he had done so.

Where a teacher is using powers of search to obtain evidence of a serious criminal offence, that is such an extraordinary use of his loco parental power that arguably the teacher should not go further without securing the presence and specific authority of the parents. The NSW Department of Education has policies for this sort of thing, but the documents setting these out are kept in the decent obscurity of its intranet.

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