Bullying in Schools
 Combatting Bullying in Schools

Bullying in schools is not a new issue and continues to be a problem for many pupils each year. The advent of electronic communication, mobile telephones and social media has brought an added dimension in the form cyberbullying. It is growing very fast.

In many cases this takes bullying away from the school premises or school bus but intrudes into the pupil’s home and social environment.

Whilst there is a legal framework in England and Wales to try and prevent it, when it bullying occurs the remedies for the victims can be limited.

To some degree school discipline and bullying at school are linked. The perceived wisdom being that a clear school behaviour policy should enhance school discipline and reduce the risk of bullying. “Schools which excel at tackling bullying have created an ethos of good behaviour where pupils treat one another and the school staff with respect because they know that this is the right way to behave. Values of respect for staff and other pupils, an understanding of the value of education, and a clear understanding of how our actions affect others permeate the whole school environment and are reinforced by staff and older pupils who set a good example to the rest.” Preventing and Tackling Bullying, Advice for Head Teachers, Staff and Governing Bodies (2011)

Section 89 Education and Inspections Act 2006 (EIA 2006) and the Education (Independent SchoolStandards) (England) Regulations 2010, regulation 9, require every school (including academies) to have a behaviour policy. This policy must include measures to prevent all forms of bullying amongst pupils. For maintained schools there must be a clear written anti-bullying policy linked to the behaviour policy.

Section 89(5) (EIA 2006) gives Head Teachers (of maintained schools) the power “to such extent as is reasonable” to regulate the conduct of pupils who are off the school premises and not under the lawful control or charge of a member of staff of the school.

Local authorities and schools can try to bring parents to account by applying for parenting orders where their child has been excluded from school for serious misbehaviour (if this misbehaviour was bullying.) [Sections 97-99 EIA 1996]

Bullying Prevention LawSection 2 of the Education Act 2011 increases the powers of members of school staff to search pupils by amending Sections 550ZA-D of Education Act 1996. This includes the power to search for an image on a mobile ‘phone or lap top if it is likely to be used to cause personal injury to another person or commit a criminal offence, or if the power to search those items has been specified in the school rules. In certain circumstances the image or data can be erased “if there is good reason to do so.”

Another aspect of the legislative framework is the fact that the equality duty created by the Equality Act 2010 applies to all schools, including academies. The most relevant aspect of this duty in the context of bullying, is having due regard to the need to eliminate unlawful discrimination, harassment, and victimisation.

Ensuring Good Behaviour in Schools (2012) is the current guidance on discipline in schools which summarises legal powers and duties and how they apply for teachers, governing bodies, parents and pupils.

New guidance on bullying Preventing and Tackling Bullying, Advice for Head Teachers, Staff and Governing Bodies was published in 2011. This defines bullying as “behaviour by an individual or group, repeated over time, that intentionally hurts another individual or group either physically or emotionally.”

The safeguarding duties imposed by the Section 47 Children Act 1989 should not be overlooked by schools. Where there is reasonable cause to suspect that a child or young person is suffering or likely to suffer significant harm as a result of a bullying incident(s) it should be treated as a possible child protection matter by school staff and referred to the local authority Children’s Social Care Services. This applies to maintained schools, independent schools and academies

Since January 2012 the Ofsted framework has included behaviour and safety as a key inspection criterion. This puts an onus on schools to demonstrate the effectiveness of their anti-bullying policy.

On the face of it there is quite a strong legislative framework to regulated discipline and behaviour in order to address the problem of bullying. But, the problem is very far from being eradicated. What remedies are available for the victims of bullying?

Criminal Law Remedies:

Bullying of any sort in not a free standing criminal offence. But in certain cases the behaviour complained of could constitute an offence under the Public Order Act 1986, The Malicious Communications Act 1988, The Protection from Harassment Act 1997, or the Communications Act 2003. But, the issue of criminal responsibility will depend on the age of the perpetrator. For example, there is a presumption that a child under 10 years cannot be guilty of an offence. Young persons of 14 and over are deemed to have the same level of criminal responsibility as an adult. [Section 4 Children and Young Persons Act 1969 amended the 1933 Act.]

For cyberbullying the 1988 and 2003 Acts would be often the most appropriate to prosecute the bully under.

Section 1 Malicious Communications Act 1988 creates an offence for “ a person who sends to another person a letter, electronic communication or article of any description which conveys a message which is indecent or grossly offensive, a threat, information which is false and known to be false by the sender or any article or electronic communication which is, in whole or in part of an indecent of grossly offensive nature” Conviction carries a penalty of up to 6 months imprisonment and/or a fine of level 5.

Section 127 of the Communications Act 2003 covers all forms of public communication. It creates two offences. In either case the penalty is up to 6 months imprisonment and/or a fine of level 5.

S127(1) “ A person is guilty of an offence if he sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character or causes any such message or matter to be sent”;

S127(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he (a)sends by means of a public electronic communications network, a message that he knows to be false,(b) causes such a message to be sent; or(c) persistently makes use of a public electronic communications network.

As a result of several recent high profile cases including the High Court appeal decision in Chambers v DPP [2012] EWHC 2157 (Admin) (the tweet about Robin Hood airport) the DPP is going to draw up legal guidelines dealing with when charges can be brought for social media abuse.

For victims of “old style” physical or verbal bullying prosecutions would need to be brought under either, Section 4A or 5 Public Order Act 1986 ( using threatening, abusive or insulting words or behaviour or displaying to another person any threatening, abusive or insulting material sign or other representation causing that or another person harassment, alarm or distress (S4A) or doing so with intent within the sight of hearing of a person likely to be caused harassment, alarm or distress.(S5) ), or, Section 1 Protection from Harassment Act 1997. “A person must not pursue a course of conduct which amounts to harassment of another and which he knows or ought to know amounts to harassment of the other.” To amount to a “course of conduct” there must be at least two occasions. The penalty on conviction is 6 months imprisonment and /or fine on level 5.

Compared to cyberbullying where there is concrete evidence of what was sent, these offences can be harder to prosecute. This is particularly the case if the evidence is just the victim’s account of what has happened.

Civil Remedies:

It should be noted that section 3 of the 1997 Act also provides a civil remedy where on an “actual or apprehended breach of section 1” the victim could bring a claim in civil proceedings for damages and an injunction. But, to succeed the level of the behaviour complained of must be on a par with that necessary to prosecute for the criminal offence of harassment under the Act [See: University of Oxford and Others v Broughton [2008] EWHC 75 (QB) ]

The victim could consider whether he could bring a civil claim for defamation against the bully on the basis that material had been published about him that had damaged his reputation.

Trying to bring civil proceedings for breach of duty care against the school or individual staff has many difficulties. The Bolam Test applies to the standard of care – the duty to exercise the skill and care of a reasonable teacher based on what would have been acceptable to reasonable members of the teaching profession at that time. [See Bolam v Friern Hospital Management Corporation [1957] 1 WLR 582] In the context of bullying it could be said the question to be asked is “did the way the school dealt with the bullying fall in line with a body of reasonable professionals?” If so, the school will have discharged the standard of care and have a valid defence. In Faulkner v Enfield London Borough

Education Law BarristersBullying in Schools is a constant worry for parents. Children can live in misery, not feeling able to make adults aware of what is going on. Steps can be taken to stop bullying when it is brought to a parent or teacher’s attention but children need to be given confidence to confide. In some instances parents may feel that the school is taking inadequate precautions to prevent bullying. Parents may decide to take legal proceedings against a school that fails to protect children and young people. Education Law Barristers can advise parents and guardians about the legal remedies that are open to them, in a given set of circumstances. Our barristers also represent parents and guardians in legal proceedings taken to prevent bullying in schools.

Contact Education Law Barristers on 0845 652 0451 without obligation to discuss preventing bullying in schools.