In the case of Costello-Roberts v. the United Kingdom...,
The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention")(... and the relevant provisions of the Rules of Court, as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr Thór Vilhjálmsson,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr R. Macdonald,
Mr F. Bigi,
Sir John Freeland,
Mr L. Wildhaber,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy Registrar,
Having deliberated in private on 25 September 1992 and on 23 February 1993,
Delivers the following judgment, which was adopted on the last-mentioned date:
The Commission's request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 3, 8 and 13 (art. 3, art. 8, art. 13) of the Convention.
There appeared before the Court:
- for the Government
Mrs A. Glover, Legal Counsellor,
Foreign and Commonwealth Office, Agent,
Mr N. Bratza, Q.C., Counsel,
Mr A. Preston, Department for Education,
Mr S. Dance, Department for Education, Advisers;
- for the Commission
Sir Basil Hall, Delegate;
- for the applicant
Ms J. Beale, Barrister-at-Law, Counsel,
Mr M. Gardner, Solicitor,
Mr M. Rosenbaum, Adviser.
The Court heard addresses by Mr Bratza for the Government, by Sir Basil Hall for the Commission, and by Ms Beale for the applicant.
AS TO THE FACTS
I. THE PARTICULAR CIRCUMSTANCES OF THE CASE
On 4 November 1985 the school confirmed to her that her son had been slippered; according to her - though this too was contested by the Government - the school had initially denied the fact.
On 5 November, Mrs Costello-Roberts wrote to the Governors of the school to express her "disquiet" and "grave concern" about the use of such a "barbaric practice". She acknowledged that the "growing problems" began after the first week of term and said that "we made it very clear to the staff ... that we considered his behaviour to be reflecting signs of an upset ...". The headmaster in his turn wrote to the Chairman of the Board of Governors on 7 November, stating that the applicant's problems were due to a lack of discipline; he refused to accept authority and his behaviour was disrupting the life of the school community. Mrs Costello-Roberts also wrote to the headmaster to inform him that she did not want her son to be corporally punished. On 16 November 1985 he replied as follows:
"in view of your obvious dissatisfaction with the education being offered ... to your son ... and your desire for him to be exempt from the framework of discipline and punishment that is acceptable to all other parents at the school, it seems best if [he] is removed from [the school] at the end of the present term."
It was argued in Strasbourg, on behalf of the applicant, that he had been extremely disturbed by the slippering, which turned him from a confident, outgoing seven-year-old into a nervous and unsociable child.
The Government contended that, according to their information, any change in the child's character during his time at the school was more likely to have been caused by his inability to adjust to the constraints of boarding-school life than the "slippering". In their view, the above-mentioned correspondence between the mother, the school Governors and the headmaster reflected the boy's adaptation difficulties.
II. THE RELEVANT DOMESTIC LAW AND PRACTICE
A. The use of corporal punishment
Prosecution for common assault, the least serious form of assault, was normally brought by or on behalf of the aggrieved party in accordance with section 42 of the Offences against the Person Act 1861, as amended ("the 1861 Act"). Section 45 of the 1861 Act barred any further or other proceedings, civil or criminal, for the same cause. Consequently, the Crown did not normally undertake a prosecution for common assault, thus ensuring that the choice between criminal and civil proceedings remained with the victim of the alleged assault.
In the Magistrates' Court the maximum penalty for common assault was a fine of Ł400 or two months' imprisonment. In cases of "aggravated" common assault, namely where committed upon a male child no more than fourteen years old or any female, the maximum penalty was a higher fine or six months' imprisonment. In the Crown Court the maximum penalty on conviction increased to one year's imprisonment.
Assault occasioning actual bodily harm, a more serious form of assault, was and still is governed, in particular, by section 47 of the 1861 Act. Prosecutions are normally undertaken by the Crown and the penalty on conviction is a maximum term of five years' imprisonment.
In addition, it is an offence under section 1(1) of the Children and Young Persons Act 1933 to assault or ill-treat a child in a manner likely to cause him unnecessary suffering or injury to health. The maximum penalty on conviction is a fine or ten years' imprisonment.
The law governing the administration of corporal punishment by schoolteachers is, therefore, based upon the right of parents to use physical punishment on their children. Both parents and teachers are protected by the law only when the punishment in a particular case is "reasonable" in the circumstances. The concept of "reasonableness" permits the courts to apply standards prevailing in contemporary society with regard to the physical punishment of children.
B. The school system
Independent schools must apply for registration to the Registrar of Independent Schools, an officer of the Department of Education and Science. Registration is subject to the provision of suitable safety, health and educational standards.
The Government contended before the Convention institutions that it was clear from the provisions of sections 70-75 of the Education Act 1944 that the Secretary of State has no power to refuse to register an independent school on the ground that corporal punishment is administered there and that any refusal to register a school on this ground would be open to legal challenge by the school concerned.
Subject to the exceptions mentioned at paragraph 16 above, independent schools remain free to use corporal punishment as a disciplinary measure. According to the Government:
(a) whilst the use within the school of excessive corporal punishment (involving successful criminal prosecutions) might lead the Secretary of State to use his powers under section 71(1), the use of moderate and reasonable corporal punishment would not be a ground for serving a notice of complaint on the school or for withdrawing its registration;
(b) complaints of too frequent use of corporal punishment would be referred to Her Majesty's Inspectors who could be expected to discuss with the school its disciplinary policy, but ultimately this would be a matter for the school to decide on, within the legal constraints, leaving individual parents who objected to the policy to select a different school for their children;
(c) none of the eleven notices of complaint issued in the past five years concerned the use of corporal punishment.
The applicant contended, on the other hand, that the procedure leading to striking off the register was initiated in respect of a school making substantial use of corporal punishment. Her Majesty's Inspectors expressed concern, inter alia, with the corporal punishment system and recommended that the school review its practice.
Independent schools have charitable status, which entitles them to the tax reliefs accorded to charities generally.
PROCEEDINGS BEFORE THE COMMISSION
The full text of the Commission's opinion and the five separate opinions contained in the report is reproduced as an annex to this judgment....
FINAL SUBMISSIONS MADE TO THE COURT
AS TO THE LAW
I. RESPONSIBILITY OF THE RESPONDENT STATE
Whilst conceding that the State exercised a limited degree of control and supervision over independent schools, such as the applicant's, the Government denied that they were directly responsible for every aspect of the way in which they were run; in particular, they assumed no function in matters of discipline.
Accordingly, it must first be considered whether the facts complained of by the applicant are such as may engage the responsibility of the United Kingdom under the Convention.
"2. States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity and in conformity with the present Convention."
Secondly, in the United Kingdom, independent schools co-exist with a system of public education. The fundamental right of everyone to education is a right guaranteed equally to pupils in State and independent schools, no distinction being made between the two (see, mutatis mutandis, the above-mentioned Kjeldsen, Busk Madsen and Pedersen judgment, Series A no. 23, p. 24, para. 50).
Thirdly, the Court agrees with the applicant that the State cannot absolve itself from responsibility by delegating its obligations to private bodies or individuals (see, mutatis mutandis, the Van der Mussele v. Belgium judgment of 23 November 1983, Series A no. 70, pp. 14-15, paras. 28-30).
II. ALLEGED VIOLATION OF ARTICLE 3 (art. 3)
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
He maintained that although the actual physical force to which he had been subjected had been moderate, there had, nevertheless, been an assault on his dignity and physical integrity. He relied, in particular, on the dissenting opinions of three members of the Commission. The degrading character had, he claimed, been aggravated by his age at the time (seven years), the fact that he had been at the school for only about five weeks, the humiliating site of the punishment, the impersonal and automatic way in which it had been administered as a result of "totting up" demerit marks for minor offences, and the three-day wait between the "sentence" and its implementation.
The applicant's allegation was contested by the Government and was not accepted by a majority of the Commission.
The assessment of this minimum level of severity depends on all the circumstances of the case. Factors such as the nature and context of the punishment, the manner and method of its execution, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim must all be taken into account (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 162, the above-mentioned Tyrer judgment, Series A no. 26, pp. 14-15, paras. 29-30, and the above-mentioned Soering judgment, Series A no. 161, p. 39, para. 100).
Accordingly, no violation of Article 3 (art. 3) has been established.
III. ALLEGED VIOLATION OF ARTICLE 8 (art. 8)
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
This claim was contested by the Government, but upheld by a majority of the Commission.
This right was guaranteed under the Convention irrespective of whether he deserved to be punished or whether - which was denied - his parents had consented to such punishment in general or to the particular instance of "slippering" to which he had been subjected.
The particular disciplinary measure taken against Jeremy Costello-Roberts for a series of minor breaches of school rules did not attain, in the opinion of the Court, a level of severity which was sufficient to bring it within the ambit of Article 3 (art. 3) (see paragraph 32 above), the Convention Article which expressly deals with punishment and therefore provides a first point of reference for examining a case concerning disciplinary measures in a school.
The Court does not exclude the possibility that there might be circumstances in which Article 8 (art. 8) could be regarded as affording in relation to disciplinary measures a protection which goes beyond that given by Article 3 (art. 3). Having regard, however, to the purpose and aim of the Convention taken as a whole, and bearing in mind that the sending of a child to school necessarily involves some degree of interference with his or her private life, the Court considers that the treatment complained of by the applicant did not entail adverse effects for his physical or moral integrity sufficient to bring it within the scope of the prohibition contained in Article 8 (art. 8). While not wishing to be taken to approve in any way the retention of corporal punishment as part of the disciplinary regime of a school, the Court therefore concludes that in the circumstances of this case there has also been no violation of that Article (art. 8).
IV. ALLEGED VIOLATION OF ARTICLE 13 (art. 13)
"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."
In his submission, a civil action by him for assault would have been dismissed on the ground that his punishment fell within the bounds of reasonable and moderate chastisement. He relied on the case of Y v. the United Kingdom in which corporal punishment of a child that had involved the use of more severe physical force than in his case had been considered lawful by the County Court and in which the child had been advised that an appeal had no chance of success (see the Court's judgment of 29 October 1992 in that case, Series A no. 247-A, p. 3, para. 12). Moreover, the relevant domestic law was not concerned with whether it was permissible to inflict such punishment at all, nor did it address issues of degradation or invasion of privacy.
First, it was not disputed that it would have been open to the applicant to institute civil proceedings for assault and that, had they succeeded, the English courts would have been in a position to grant him appropriate relief in respect of the punishment which he had received.
Secondly, the effectiveness of a remedy for the purposes of Article 13 (art. 13) does not depend on the certainty of a favourable outcome (see, as the most recent authority, the Pine Valley Developments Ltd and Others v. Ireland judgment of 29 November 1991, Series A no. 222, p. 27, para. 66); in any event it is not for the Court to speculate as to what decision the English courts would have reached, given particularly the latitude which those courts would have to apply relevant contemporary standards (see paragraph 15 in fine above).
In so far as the applicant's arguments relate to the more general question of the scope of the relevant domestic law, the Court recalls that Article 13 (art. 13) does not go so far as to guarantee a remedy allowing a Contracting State's laws as such to be challenged before a national authority on the ground of being contrary to the Convention or to equivalent domestic legal norms (see, among other authorities, the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, p. 47, para. 85).
There has accordingly been no breach of Article 13 (art. 13).
FOR THESE REASONS, THE COURT
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 25 March 1993.
In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 53 para. 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) joint partly dissenting opinion of Mr Ryssdal, Mr Thór Vilhjálmsson, Mr Matscher and Mr Wildhaber;
(b) concurring opinion of Sir John Freeland.
We agree with the majority that the United Kingdom may indeed incur responsibility under the Convention on account of the administration of corporal punishment in independent schools. Primary education is compulsory in the United Kingdom as elsewhere. In such fields, the State must exercise some measure of control over private schools so as to safeguard the essence of the Convention guarantees. A State can neither shift prison administration to the private sector and thereby make corporal punishment in prisons lawful, nor can it permit the setting up of a system of private schools which are run irrespective of Convention guarantees. On the other hand, it is granted that the Convention is not applicable as such in all respects to relations between private persons. It therefore becomes a matter of balancing whether and to what extent private schools must respect Convention guarantees, in particular Articles 3 and 8 (art. 3, art. 8).
We also accept that in the circumstances of this case Article 3 (art. 3) is the first point of reference for examining a case concerning disciplinary measures in a school. Accordingly, the protection afforded by Article 8 (art. 8) to the applicant's physical integrity is not wider than that contemplated by Article 3 (art. 3).
However, in the present case, the ritualised character of the corporal punishment is striking. After a three-day gap, the headmaster of the school "whacked" a lonely and insecure 7-year-old boy. A spanking on the spur of the moment might have been permissible, but in our view, the official and formalised nature of the punishment meted out, without adequate consent of the mother, was degrading to the applicant and violated Article 3 (art. 3).
At the relevant time the laws relating to corporal punishment applied to all pupils in both State and independent schools in the United Kingdom. However, reflecting developments throughout Europe, such punishment was made unlawful for pupils in State and certain independent schools. Given that such punishment was being progressively outlawed elsewhere, it must have appeared all the more degrading to those remaining pupils in independent schools whose disciplinary regimes persisted in punishing their pupils in this way.
We might add that the child's rights under Article 3 (art. 3) are not diminished by balancing them against the mother's rights. The parents of the boarders in Barnstaple were not adequately informed that corporal punishment was used in order to maintain discipline.
I have joined in voting for the findings of non-violation of the Convention. So far as Article 3 and Article 8 (art. 3, art. 8) are concerned, this is essentially because, whatever view may be taken on the general question of the acceptability in principle, by contemporary standards, of continued toleration of corporal punishment as a disciplinary sanction in part, but not all, of the English school system, that was not the question before the Court; and I have not been satisfied that, in its own particular circumstances, the nature, purpose and effects of the punishment administered to Jeremy Costello-Roberts were sufficient to bring it within what is in my view the true scope of the protection afforded by either Article (art. 3, art. 8). But it must be evident, if only from the division of opinion in the Court, that the case is at or near the borderline; and I, for my part, would emphasise the Court's expression of misgivings in the penultimate sentence of paragraph 32 of the judgment and its wish, as stated in the last sentence of paragraph 36, not "to be taken to approve in any way the retention of corporal punishment as part of the disciplinary regime of a school".
Note 1 The case is numbered 89/1991/341/414. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission. [Back] Note 4 Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 247-C of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry. [Back]
Note 1 The case is numbered 89/1991/341/414. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission. [Back]
Note 4 Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 247-C of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry. [Back]