European Court of Human Rights

- Articles 44 and 48 (art. 44, art. 48);

- the declaration of 12 September 1967 made by the United Kingdom recognising, in respect of certain territories (including the Isle of Man) for whose international relations it was responsible, the compulsory jurisdiction of the Court (Article 46) (art. 46);

- the subsequent renewals of that declaration and particularly the renewal dated 21 April 1972 which was in force at the time the application was lodged with the Commission.

The purpose of the Commission’s request is to obtain a decision from the Court as to whether or not the facts of the case disclose a breach by the respondent State of its obligations under Article 3 (art. 3) of the Convention.

Mr. Balladore Pallieri assumed the office of President of the Chamber (Rule 21 para. 5).

At a meeting held in private in Strasbourg on 13 December 1977, the Chamber resolved to defer its decision on this request until after the oral hearings.

There appeared before the Court:

- for the Government:

       Mr. D.H. ANDERSON, Legal Counsellor,

                            Foreign and Commonwealth Office,                            Agent,

       Mr. L.J. BLOM-COOPER, Q.C.,

       Mr. J.W. CORRIN, Attorney-General, Isle of Man,

       Mr. A. COLLINS, Barrister-at-Law,                                             Counsel,

       Mrs. S.A. EVANS, Legal Advisers’ Branch, Home Office,

       Mr. J.W.C. HAINES, Treasury Solicitor’s Department,              Advisers;

- for the Commission:

       Mr. L. KELLBERG,                                                    Principal Delegate,

       Mr. K. MANGAN,                                                                       Delegate.

The Court heard Mr. Kellberg for the Commission and Mr. Blom-Cooper and Mr. Corrin for the Government; Mr. Corrin addressed the Court on the relevant circumstances pertaining in the Isle of Man.

At the hearing, the Government produced certain documents to the Court and the Attorney-General for the Isle of Man renewed the request that an investigation on the spot be carried out in accordance with Rule 38 para. 2.

AS TO THE FACTS

A. The applicant’s punishment

He appealed against sentence to the Staff of Government Division of the High Court of Justice of the Isle of Man. The appeal was heard and dismissed on the afternoon of 28 April 1972; the court considered that an unprovoked assault occasioning actual bodily harm was always very serious and that there were no reasons for interfering with the sentence. The court had ordered the applicant to be medically examined in the morning of the same day and had before it a doctor’s report that the applicant was fit to receive the punishment.

The birching raised, but did not cut, the applicant’s skin and he was sore for about a week and a half afterwards.

"Any person who shall -

(a) unlawfully assault or beat any other person;

(b) make use of provoking language or behaviour tending to a breach of the peace, shall be liable on summary conviction to a fine not exceeding thirty pounds or to be imprisoned for a term not exceeding six months and, in addition to, or instead of, either such punishment, if the offender is a male child or male young person, to be whipped."

The expressions "child" and "young person" mean, respectively, an individual of or over the age 10 and under 14 and an individual of or over the age of 14 and under 17.

(a) Section 10 of the Summary Jurisdiction Act 1960

"(a) the instrument used shall, in the case of a child, be a cane, and in any other case shall be a birch rod;

(b) the court in its sentence shall specify the number of strokes to be inflicted, being in the case of a child not more than six strokes, and in the case of any other person not more than twelve strokes;

(c) the whipping shall be inflicted privately as soon as practicable after sentence and in any event shall not take place after the expiration of six months from the passing of the sentence;

(d) the whipping shall be inflicted by a constable in the presence of an inspector or other officer of police of higher rank than a constable, and, in the case of a child or young person, also in the presence if he desires to be present, of the parent or guardian of the child or young person."

(b) Directive of the Lieutenant-Governor, dated 30 May 1960

"l. The instruments to be used shall be: -

(i) in the case of a male child who is under the age of 14 years, a light cane not exceeding four feet in length and not exceeding half an inch in diameter,

and

(ii) in the case of a male person who is of the age of 14 years but is under the age of 21 years a birch rod of the following dimensions:

Weight not exceeding 9 ounces

Length from end of handle to tip of spray 40 inches

Length of handle 15 inches

Circumference of spray at centre 6 inches

Circumference of handle at top of binding 3 1/2 inches

Circumference of handle 6 inches from end 3 1/4 inches

2. In all cases where a Court is empowered to impose a sentence of whipping a medical report as to whether the offender is fit to receive the punishment will be made available to the Magistrates before they consider sentence. Arrangements for this report will be made by the Clerk of the Court.

3. The whipping shall be inflicted on the posterior over the child’s ordinary cloth trousers.

4. A medical practitioner shall be present during a birching and may at his discretion order the stopping of the punishment at any time. Where a birching has been stopped on medical grounds a report of the facts shall be forwarded immediately to His Excellency."

With reference to paragraph 3 of the Directive, the Court was advised at the hearing on 17 January 1978 that, in the light of the Commission’s report, an amendment had recently been made by the Isle of Man Government whereby the punishment is to be administered over ordinary cloth trousers in all cases irrespective of the offender’s age.

B. General background

Prior to October 1950, the United Kingdom Government regarded international treaties applicable to the United Kingdom as extending, in the absence of contrary provision, to the Isle of Man. Thereafter, they no longer so regarded such treaties unless there were an express inclusion and they treated the Island as a territory for whose international relations they were responsible. In fact, by letter dated 23 October 1953 addressed to the Secretary-General of the Council of Europe, the Government of the United Kingdom declared, in accordance with Article 63 (art. 63) of the Convention, that the Convention should extend to a number of such territories, including the Isle of Man.

The Island’s parliament, the Court of Tynwald, is one of the oldest in Europe. It consists of a Lieutenant-Governor appointed by and representing the Crown, an Upper House (the Legislative Council) and a Lower House (the House of Keys). Tynwald legislates in domestic matters, the laws it adopts requiring ratification by the Queen in Council; the Home Secretary is responsible for advising the Privy Council whether or not to recommend that the Royal Assent be given.

In strict law, the United Kingdom Parliament has full power to pass laws applicable to the Isle of Man but, by constitutional convention, does not in the ordinary course legislate on the Island’s domestic affairs, such as penal policy, without its consent. This convention would be followed unless it were overridden by some other consideration, an example of which would be an international treaty obligation.

In May 1977, by thirty-one votes for and only one against, Tynwald passed a resolution, inter alia,

"that the retention of the use of judicial corporal punishment for crimes of violence to the person is a desirable safeguard in the control of law and order in this Island and Tynwald hereby re-affirms its policy to retain the use of judicial corporal punishment for violent crimes to the person committed by males under the age of 21".

At the hearing on 17 January 1978, the Attorney-General for the Isle of Man informed the Court that recently a privately organised petition in favour of the retention of judicial corporal punishment had obtained 31,000 signatures from amongst the approximate total of 45,000 persons entitled to vote on the Island.

During his address to the Court, the Attorney-General for the Isle of Man indicated that the Manx legislature would shortly be considering the Criminal Law Bill 1978 which contained a proposal to limit the use of judicial corporal punishment to young males for certain specified offences only, on the whole the more serious offences of violence. The offence with which the applicant was charged had been omitted from the specified list of offences.

In the three years 1975 to 1977, only one young male was convicted of a crime of violence.

At the 1976 census, the Island’s population stood at 60,496.

PROCEEDINGS BEFORE THE COMMISSION

- his judicial corporal punishment constituted a breach of Article 3 (art. 3) of the Convention;

- such punishment was destructive of family well-being and therefore contrary to Article 8 (art. 8) of the Convention;

- no remedies existed to rectify the violation, which was inconsistent with Article 13 (art. 13) of the Convention;

- the punishment was discriminatory within the meaning of Article 14 (art. 14) of the Convention in that it was primarily pronounced on persons from financially and socially deprived homes;

- the violation of Article 3 (art. 3) also constituted a violation of Article 1 (art. 1) of the Convention.

The applicant also claimed damages as well as repeal of the legislation concerned.

- decided not to proceed further with an examination of the original complaint under Article 14 (art. 14) which the applicant had subsequently withdrawn;

- declared admissible and retained those parts of the application which raised issues under Article 3 (art. 3), either alone or in conjunction with Article 14 (art. 14+3);

- declared inadmissible the remainder of the application.

- by fourteen votes to one, that the judicial corporal punishment inflicted on the applicant was degrading and was in breach of Article 3 (art. 3) of the Convention;

- that it was not necessary, in view of the preceding conclusion, to pursue an examination of the issue under Article 14 (art. 14) of the Convention;

- as regards Article 63 para. 3 (art. 63-3) of the Convention, that there were not any significant social or cultural differences between the Isle of Man and the United Kingdom which could be relevant to the application of Article 3 (art. 3) in the present case.

The report contains one separate opinion.

AS TO THE LAW

I. PRELIMINARY QUESTIONS

A. The Court’s jurisdiction

In its request to the Court, the Commission indicated that it had had regard to the various renewals of the said declaration and particularly the renewal dated 21 April 1972 which was in force at the time of the introduction of the application before the Commission. For their part, the Government, which had not filed any preliminary objection pursuant to Rule 46 of the Rules of Court, stated at the hearing that they consented to the Court having jurisdiction in accordance with Article 48 (art. 48), although it was not to be inferred that they necessarily agreed with the reasoning in the Commission’s request.

The Court finds that in these circumstances its jurisdiction is established.

B. The request to strike the case out of the Court’s list

On 9 March 1976, the Commission had decided, pursuant to the then Rule 43 of its Rules of Procedure, that it could not accede to the applicant’s request since the case raised questions of a general character affecting the observance of the Convention which necessitated a further examination of the issues involved (see paragraph 21 above). Before the Court, the principal delegate submitted that the applicant’s wishes must be subordinated to the general interest to ensure respect for human rights as defined in the Convention. He added that the Commission had never examined the reasons for, and circumstances surrounding, the applicant’s request.

The Attorney-General for the Isle of Man conceded that, under its Rules of Procedure, the Commission was entitled to refuse, on the grounds mentioned above, to allow Mr. Tyrer to withdraw. He did not suggest that there had been any irregularity in the Commission’s decision; he merely contended that in the particular circumstances the applicant’s wishes should supersede the general character of the case and that therefore the Court should consider striking the case out of its list under Rule 47 of its Rules.

Paragraph 1 of Rule 47 is not applicable in the circumstances. Firstly, when Mr. Tyrer declared that he wished to withdraw his application the case was still pending before the Commission. Secondly that declaration, coming from an individual who is not entitled under the Convention to refer cases to the Court, cannot entail the effects of a discontinuance of the present proceedings (De Becker judgment of 27 March 1962, Series A no. 4, p. 23, para. 4). Above all, paragraph 1 covers solely discontinuance by "a Party which has brought the case before the Court", that is to say by an Applicant Contracting State in proceedings before the Court (paragraph (h) of Rule 1; Kjeldsen, Busk Madsen and Pedersen judgment of 7 December 1976, Series A no. 23, p. 21, para. 47).

Paragraph 2 of Rule 47 provides that the Court may, subject to paragraph 3, strike out of its list a case brought before it by the Commission but only when the Court "is informed of a friendly settlement, arrangement or other fact of a kind to provide a solution of the matter". As mentioned above, the Commission never examined the circumstances surrounding the applicant’s request and the Court has been supplied with no further information regarding those circumstances. Thus, the Court has received no indication that Mr. Tyrer’s declaration of withdrawal is a fact of a kind to provide a solution of the matter.

The Court does not consider that the legislation envisaged can be regarded as such a fact. There is no certainty as to whether and when the proposal will become law and, even if adopted, it cannot erase a punishment already inflicted. What is more, the proposed legislation does not go to the substance of the issue before the Court, namely whether judicial corporal punishment as inflicted on the applicant in accordance with Manx legislation is contrary to the Convention.

II. ON ARTICLE 3 (art. 3)

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

He alleged that there had been torture or inhuman or degrading treatment or punishment, or any combination thereof.

In its report, the Commission expressed the opinion that judicial corporal punishment, being degrading, constituted a breach of Article 3 (art. 3) and that, consequently, its infliction on the applicant was in violation of that provision.

That judgment also contains various indications concerning the notions of "inhuman treatment" and "degrading treatment" but it deliberately left aside the notions of "inhuman punishment" and "degrading punishment" which alone are relevant in the present case (ibid., p. 65, para. 164). Those indications accordingly cannot, as such, serve here. Nevertheless, it remains true that the suffering occasioned must attain a particular level before a punishment can be classified as "inhuman" within the meaning of Article 3 (art. 3). Here again, the Court does not consider on the facts of the case that that level was attained and it therefore concurs with the Commission that the penalty imposed on Mr. Tyrer was not "inhuman punishment" within the meaning of Article 3 (art. 3). Accordingly, the only question for decision is whether he was subjected to a "degrading punishment" contrary to that Article (art. 3).

However, as the Court pointed out in its judgment of 18 January 1978 in the case of Ireland v. the United Kingdom (Series A no. 25, p. 65, para. 163), the prohibition contained in Article 3 (art. 3) of the Convention is absolute: no provision is made for exceptions and, under Article 15 (2) (art. 15-2) there can be no derogation from Article 3 (art. 3). It would be absurd to hold that judicial punishment generally, by reason of its usual and perhaps almost inevitable element of humiliation, is "degrading" within the meaning of Article 3 (art. 3). Some further criterion must be read into the text. Indeed, Article 3 (art. 3), by expressly prohibiting "inhuman" and "degrading" punishment, implies that there is a distinction between such punishment and punishment in general.

In the Court’s view, in order for a punishment to be "degrading" and in breach of Article 3 (art. 3), the humiliation or debasement involved must attain a particular level and must in any event be other than that usual element of humiliation referred to in the preceding subparagraph. The assessment is, in the nature of things, relative: it depends on all the circumstances of the case and, in particular, on the nature and context of the punishment itself and the manner and method of its execution.

The Court must also recall that the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions. In the case now before it the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field. Indeed, the Attorney-General for the Isle of Man mentioned that, for many years, the provisions of Manx legislation concerning judicial corporal punishment had been under review.

Publicity may be a relevant factor in assessing whether a punishment is "degrading" within the meaning of Article 3 (art. 3), but the Court does not consider that absence of publicity will necessarily prevent a given punishment from falling into that category: it may well suffice that the victim is humiliated in his own eyes, even if not in the eyes of others.

The Court notes that the relevant Isle of Man legislation, as well as giving the offender a right of appeal against sentence, provides for certain safeguards. Thus, there is a prior medical examination; the number of strokes and dimensions of the birch are regulated in detail; a doctor is present and may order the punishment to be stopped; in the case of a child or young person, the parent may attend if he so desires; the birching is carried out by a police constable in the presence of a more senior colleague.

The very nature of judicial corporal punishment is that it involves one human being inflicting physical violence on another human being. Furthermore, it is institutionalised violence that is in the present case violence permitted by the law, ordered by the judicial authorities of the State and carried out by the police authorities of the State (see paragraph 10 above). Thus, although the applicant did not suffer any severe or long-lasting physical effects, his punishment - whereby he was treated as an object in the power of the authorities - constituted an assault on precisely that which it is one of the main purposes of Article 3 (art. 3) to protect, namely a person’s dignity and physical integrity. Neither can it be excluded that the punishment may have had adverse psychological effects.

The institutionalised character of this violence is further compounded by the whole aura of official procedure attending the punishment and by the fact that those inflicting it were total strangers to the offender.

Admittedly, the relevant legislation provides that in any event birching shall not take place later than six months after the passing of sentence. However, this does not alter the fact that there had been an interval of several weeks since the applicant’s conviction by the juvenile court and a considerable delay in the police station where the punishment was carried out. Accordingly, in addition to the physical pain he experienced, Mr. Tyrer was subjected to the mental anguish of anticipating the violence he was to have inflicted on him.

The Court therefore concludes that the judicial corporal punishment inflicted on the applicant amounted to degrading punishment within the meaning of Article 3 (art. 3) of the Convention.

III. ON ARTICLE 63 (art. 63)

"1. Any State may at the time of its ratification or at any time thereafter declare by notification addressed to the Secretary-General of the Council of Europe that the present Convention shall extend to all or any of the territories for whose international relations it is responsible.

 ...

3. The provisions of this Convention shall be applied in such territories with due regard, however, to local requirements."

"firstly that judicial corporal punishment as practised in the Isle of Man in the case of the applicant is not a degrading punishment and that the United Kingdom is not in breach of the Convention by virtue of Article 63 (3) (art. 63-3); secondly ... that, having due regard to the local circumstances in the Island ... the continued use of judicial corporal punishment on a limited scale is justified as a deterrent and consequently the United Kingdom would not be in breach of the Convention."

The Attorney-General relied in particular on the state of opinion in the Island and referred, inter alia, to a recent debate in the Manx legislature and a recent petition both of which had indicated that there was a large majority in favour of retention of judicial corporal punishment in specified circumstances (see paragraph 15 above). That majority, he said, not only did not consider this penalty to be degrading but also saw it as an effective deterrent and as a desirable safeguard in the control of law and order. He also cited statistics in support of these views (see paragraph 18 above).

The principal delegate of the Commission submitted, as regards local conditions in the Isle of Man, that it was difficult to conceive that any local characteristics could be put forward to justify a breach of Article 3 (art. 3). He pointed out that no specific local conditions had been pleaded save the belief of many people in the Isle of Man that judicial corporal punishment is an effective deterrent and added that, even assuming that such a belief could constitute a local condition, the Commission did not consider that if affected its conclusion of a violation of Article 3 (art. 3). Finally, he stated that the Commission’s view that there were no significant social or cultural differences between the Isle of Man and the United Kingdom which could be relevant to the application of Article 3 (art. 3) in this case amounted to saying that Article 63 (3) (art. 63-3) in fact cannot be called in aid as regards territories with such close ties and affinities as in the case of the Isle of Man and the United Kingdom.

The Court notes firstly that the Attorney-General for the Isle of Man spoke more of circumstances and conditions than of requirements in the Island. The undoubtedly sincere beliefs on the part of members of the local population afford some indication that judicial corporal punishment is considered necessary in the Isle of Man as a deterrent and to maintain law and order. However, for the application of Article 63 (3) (art. 63-3), more would be needed: there would have to be positive and conclusive proof of a requirement and the Court could not regard beliefs and local public opinion on their own as constituting such proof.

Moreover, even assuming that judicial corporal punishment did possess those advantages which are attributed to it by local public opinion, there is no evidence before the Court to show that law and order in the Isle of Man could not be maintained without recourse to that punishment. In this connection, it is noteworthy that, in the great majority of the member States of the Council of Europe, judicial corporal punishment is not, it appears, used and, indeed, in some of them, has never existed in modern times; in the Isle of Man itself, as already mentioned, the relevant legislation has been under review for many years. If nothing else, this casts doubt on whether the availability of this penalty is a requirement for the maintenance of law and order in a European country. The Isle of Man not only enjoys long-established and highly-developed political, social and cultural traditions but is an up-to-date society. Historically, geographically and culturally, the Island has always been included in the European family of nations and must be regarded as sharing fully that "common heritage of political traditions, ideals, freedom and the rule of law" to which the Preamble to the Convention refers. The Court notes, in this connection, that the system established by Article 63 (art. 63) was primarily designed to meet the fact that, when the Convention was drafted, there were still certain colonial territories whose state of civilisation did not, it was thought, permit the full application of the Convention.

Finally and above all, even if law and order in the Isle of Man could not be maintained without recourse to judicial corporal punishment, this would not render its use compatible with the Convention. As the Court has already recalled, the prohibition contained in Article 3 (art. 3) is absolute and, under Article 15 (2) (art. 15-2), the Contracting States may not derogate from Article 3 (art. 3) even in the event of war or other public emergency threatening the life of the nation. Likewise, in the Court’s view, no local requirement relative to the maintenance of law and order would entitle any of those States, under Article 63 (art. 63), to make use of a punishment contrary to Article 3 (art. 3).

IV. ON ARTICLE 14 (art. 14)

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

V. ON ARTICLE 50 (art. 50)

"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the present Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

The Court regards this question as ready for decision. It shares the view of the Commission and accordingly considers that it is not necessary to apply Article 50 (art. 50) in the present case.

FOR THESE REASONS, THE COURT

1. decides unanimously not to strike the case out of its list;

2. holds by six votes to one that the judicial corporal punishment inflicted on Mr. Tyrer amounted to degrading punishment within the meaning of Article 3 (art. 3);

3. holds unanimously that in the present case there are no local requirements within the meaning of Article 63 para. 3 (art. 63-3) which could affect the application of Article 3 (art. 3);

4. holds by six votes to one that the said punishment accordingly violated Article 3 (art. 3);

5. holds unanimously that it is not necessary to examine the question of a possible violation of Article 3 taken together with Article 14 (art. 14+3);

6. holds unanimously that it is not necessary to apply Article 50 (art. 50) in the present case.

Done in English and French, the English text being authentic, at the Human Rights Building, Strasbourg, this twenty-fifth day of April, one thousand nine hundred and seventy-eight.

Giorgio Balladore Pallieri

President

On behalf of the Registrar

Herbert Petzold

Deputy Registrar

Judge Sir Gerald Fitzmaurice has annexed his separate opinion to the present judgment in accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 50 para. 2 of the Rules of Court.

G. B. P.

H. P.

SEPARATE OPINION OF JUDGE SIR GERALD FITZMAURICE

1. To my regret, I feel obliged to dissent from the view taken by the Court on what is the main issue in this case, namely whether the punishment inflicted on Mr. Tyrer - he being then a schoolboy - amounted to a "degrading" punishment contrary to Article 3 (art. 3) of the European Human Rights Convention. However, I can at least address myself exclusively to that matter since, while not necessarily agreeing in toto on every other question - in particular that of paragraph 3 of Article 63 (art. 63-3) (due regard to be paid to local requirements in the case of non-metropolitan territories) – I did not feel called upon actually to vote against the conclusions reached by the Court on points not directly arising on Article 3 (art. 3). Moreover, in view of the fact that the Court has found (correctly in my opinion) that Mr. Tyrer’s punishment did not amount either to torture or to inhuman treatment, I need not deal with those matters except in so far as, in a general way, they are relevant to what I want to say on the third component of Article 3 (art. 3) - degrading treatment or punishment. The more specific aspects of torture and inhuman treatment I considered in some detail in the recent case of Ireland v. the United Kingdom (Judgment of 18 January 1978), which I shall hereafter refer to as the "Irish case".