Before issuing a written trespass notice, the first question the board or principal of a state
school should ask is whether the person would normally have some kind of right or implied
licence to be on school grounds. If so, that person will have a right under the Bill of Rights
Act to a fair process. The Ombudsman has held that, in practice, a fair process means the
person should be told of the school’s intention to issue a written trespass notice and the
reasons for the notice, and be given an opportunity to respond before the trespass notice is
issued.

Trespass notices and parents

It is particularly important to follow a fair process when trespassing a parent. The common
law treats the trespassing of parents or guardians of enrolled pupils differently to the
trespassing of other members of the public because of the parent or guardian’s right to be
involved with their child’s education. The removal of the implied licence of a parent to be at
the school is a serious decision. The Ombudsman is likely to review trespass notices
against current parents.

Trespass notices and members of the community

Although members of the public do not have an automatic right to be on school grounds
there are often circumstances where the individual concerned may have a history of regular
involvement with the school such that a trespass notice may be offensive and distressing to
the person. In such a situation a trespass notice may not be the most effective way of
dealing with the situation but if considered necessary the same fair process should be
followed.
A trespass notice cannot be used to prevent disruptive members of the community from
attending school board meetings for a two year period. The Court of Appeal has found that in
that situation the Local Government Information and Meetings Act 1987 applies and takes
precedence over the Trespass Act and only allows the removal of the person from the
meeting in question.

Trespass notices and former students

Sometimes students who are excluded or expelled come back onto the school grounds,
even though they no longer have a right to do so. The reasons for this may vary. Some
schools issue trespass notices to resolve this issue. It is recommended that this be avoided
if possible and that verbal warnings and reminder letters be used instead. The student is
already experiencing being alienated from his or her social group as a result of the expulsion

or exclusion, and the effect of that isolation is greater than schools often realise. A trespass
notice increases the sense of isolation. A further reason is that trespass notices filed with
the Police remain on the Police record even after they expire and have the potential to cause
problems for the student with Police vets later in life.

Other possibilities to consider

If the person would normally have an implied licence to be at the school, consideration could
be given to the appropriate length of time for the notice. Two years is the default period in
the Act and on the standard form downloadable from the Police website but since a trespass
notice can be withdrawn by the occupier at any time, the school could consider issuing a
trespass notice for a shorter period. In some cases all that is required is sufficient time for
people to calm down.
The school could also consider limiting the parts of the school that the person can come onto
rather than banning them from the whole school. For example, limiting the trespassed
person to coming into the administration area but not to the classrooms or grounds.
Schools have obligations under the Health and Safety at Work Act 2015 and the Education
Act 1989 to ensure the safety and wellbeing of staff and students. This needs to be balanced
against the extent to which the safety and well-being of staff and students is actually
impacted by the person’s conduct, which will depend on such factors as whether the conduct
was in sight and hearing of the students, the age of the students and whether there is a
reasonable likelihood of harm.

Last resort

The general view of the Ombudsman is that trespass notices should be a last resort when
dealing with “difficult” or angry members of the community, unless there is clearly a safety
threat to staff or students or the person’s presence is disruptive of the school programme. If
the person would normally have some kind of right to be there, then to comply with the Bill of
Rights Act a letter from the school warning that a trespass notice may be issued, and giving
the individual an opportunity to respond, will normally be required.

 

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