AS TO THE ADMISSIBILITY OF
Application No. 11756/85
by L. and G. S.
against the United Kingdom
The European Commission of Human Rights sitting in private on
10 October 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 26 October 1982
by L. and G. S. against the United Kingdom and registered on 19 September
1985 under file No. 11756/85;
Having regard to:
- reports provided for in Rule 40 of the Rules of Procedure
of the Commission;
- the Commission's decision of 17 July 1986 to bring the
application to the notice of the respondent Government
and invite them to submit written observations on its
admissibility and merits;
- the observations on admissibility submitted by the
respondent Government on 5 August 1987 and 5 February 1988
upon which the applicants had no comment;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is an Irish citizen, born in 1943, living in
Worthing, England. The second applicant is her son, born on 30 August
1969. They are represented before the Commission by Messrs. Wilford
McBain, solicitors, of London.
The facts, as they have been submitted by the parties, may be
summarised as follows:
The second applicant (the son) attended the local Church of
England boys' high school. During a German lesson on 27 April 1982
the son was reprimanded by the teacher for the poor standard of his
school work. The teacher thereafter left the room and returned with a
cane, announcing that one of the pupils "was to be beaten with the
cane for untidy and shoddy work". The son understood the reference to
be to him.
At the end of the lesson the teacher ordered the son to remain
in the room after the rest of the class had been dismissed and
informed him that he was to be punished for his poor school work. He
told the son to bend over and touch his toes and the teacher then
struck the boy across the buttocks and the back of the thighs twice.
The son then straightened up and began to move away, but was ordered
by the teacher to resume his former posture and was thereupon struck a
third time across the buttocks. The third blow also struck the son's
hand. It appears that at least two boys could see the incident
through the glass panel in the classroom door.
The son was later found by a physical education teacher,
limping and bleeding and in a very distressed condition as a result of
the caning. A temporary dressing was applied to the son's cuts and
the first applicant was telephoned and asked to collect her son. On
arriving at the school, the first applicant states that she became so
greatly distressed that she found herself "shaking from head to foot".
The son was given a medical examination by his family doctor
who found "two large linear weals across his buttocks and thighs one
of which has drawn blood and has large bruises under it". Traces of
the injuries were still visible more than three months thereafter.
As a result of the incident, the husband/father wrote to the
school's headmaster. The teacher concerned was suspended from his
post pending an inquiry into the incident.
The first applicant and her husband also complained to the
police, as a result of which the teacher was charged with an assault
upon the boy occasioning actual bodily harm contrary to Section 47 of
the Offences against the Person Act 1861. The teacher was acquitted
on 22 July 1982, apparently on the grounds that his treatment of the
boy amounted to no more than reasonable physical chastisement as
permitted by the common law. The applicants' representatives assert
that the son became greatly distressed during the court hearing and
repeatedly broke down in tears. The first applicant also suffered
anguish at having to witness her son in a distressed condition in the
witness box without being able to help. In the newspaper reports of
the trial, the applicants were named and photographs of the boy were
included. It is claimed that the son's whole personality changed
after the incident from being ebullient to being very subdued and
introverted.
In or about June 1985 the second applicant, represented by the
first, instituted civil proceedings for assault against the teacher
concerned, the governors of the school and the local education
authority. These proceedings were terminated on 23 April 1986 by a
settlement between the parties, the local authority agreeing to pay
£300 in damages, plus costs.
As regards the school's internal inquiry into the incident, it
was found that the teacher had acted in contravention of the relevant
school rules which were as follows:
"1. Corporal punishment may only be administered by
authorised members of staff, the authorisation coming
only from the Headmaster or his deputy.
2. Canes will be kept in the Deputy Head's office, and
may be removed from there only with the express permission
of the Headmaster or the Deputy Head.
3. The nature of the offence and the number of strokes
must be discussed with the Head or deputy prior to the
punishment. Two strokes will be regarded as the normal
maximum.
4. As a general guide, corporal punishment should never
be given for poor work or failure to complete homework.
5. The punishment must be administered or witnessed by
one of the five senior staff listed below:
Headmaster
Deputy Head
Senior Master
Head of Lower School
Head of Upper School.
6. The appropriate entry must be recorded in full in
the punishment book (kept in the Deputy Head's office)
at the time of the administration of the punishment.
7. The strokes must be administered on the buttocks only."
The teacher was allowed to return to the school after his acquittal on
the criminal charges, but he was given a formal written warning as to
his conduct under the local education authority's disciplinary
procedures. By the time the teacher returned to the school the son had
been moved to another school in the area.
COMPLAINTS
The first applicant complains on behalf of herself and the
second applicant that the corporal punishment of the latter
constituted a violation of their rights protected by Article 3 of the
Convention. In addition it is claimed that they had no remedy,
contrary to Article 13 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 26 October 1982 when the
applicants' representatives wrote to the Secretary to the Commission
submitting details of the complaints. An application form was sent to
them on 16 November 1982, with the request that it should be returned,
duly completed. The applicants' solicitors' next letter is dated
5 September 1985, when the application form was returned. It was
received on 19 September 1985 and registered on that date. The
application was made in the name of the first applicant, who made
complaints on her own behalf and on behalf of her son, a minor at the
time.
After a preliminary examination of the case by a Rapporteur,
the Commission examined the case on 17 July 1986 but then adjourned
it. It renewed its examination of the case on 12 March 1987 and
decided to give notice of the application, pursuant to Rule 42(2)(b)
of its Rules of Procedure, to the respondent Government.
On 5 August 1987, after an extension of the time-limit, the
Government expressed their wish to resolve the application by virtue
of the abolition of corporal punishment in State schools by the
Education (No. 2) Act 1986, which came into force on 15 August 1987,
in view of the fact that the first applicant had stated in the
application to the Commission that its object was, inter alia, to
obtain a reform of the domestic law. The applicants submitted no
response to the Government's proposal.
On 12 December 1987 the Commission decided to invite the
respondent Government to make specific proposals for the resolution of
the case. However on 5 February 1988 the Government submitted written
observations on the admissibility of the application. On 29 April
1988 the applicants' representatives informed the Commission that the
applicants relied on the submissions in the original application and
had no further observations to make.
SUBMISSIONS OF THE PARTIES
A. The Government
1. The relevant facts
The Government's observations on the facts of the case have
been incorporated in THE FACTS above, particularly the information
concerning the applicants' civil claim and the school's internal
inquiry.
2. The law relating to corporal punishment in schools
a. The criminal law
Under the criminal law assault is punishable under the
provisions of the Offences Against the Person Act 1861. A conviction
for the least serious form of assault "common assault" is susceptible
to a fine of up to £400 or two months' imprisonment. A conviction for
assault occasioning actual bodily harm is susceptible to five years'
imprisonment. An act does not constitute assault, however, if it is
done in the course of lawful correction such as by a parent of a
child. Such correction must be reasonable and moderate and
administered with a proper instrument and in a decent manner. The
exception for lawful correction extends to persons such as teachers
who are in loco parentis.
b. The civil law
Physical assault is susceptible to an action for damages as a
form of trespass to person. It is a defence to such an action that
the act of which complaint is made was reasonable chastisement in the
exercise of parental or other authority. Prior to 15 August 1987
teachers were deemed to be acting in loco parentis, since that
date and the coming into force of the Education (No. 2) Act 1986
teachers may no longer claim this defence as regards pupils in State
schools or in certain schools subsidised by the State or as regards
certain pupils at independent schools whose fees are paid by the
State.
3. The issues under Article 25 of the Convention
The Government contend that the first applicant, and
presumably, the second applicant, may no longer claim under Article 25
of the Convention to be victims of a violation of the Convention.
The Government assume that the first applicant is claiming as
an indirect victim of a breach of Articles 3 and 13 of the Convention.
They note that one of the objects of the application, to obtain a
reform of the law, has been achieved with the Education (No. 2) Act
1986.
The Government further submit that the settlement of the
applicants' civil claim on 23 April 1986 constituted adequate redress
in respect of the complaints made in the application to the Commission
(cf. Nos. 5577-5583/72 Donnelly and six others v. the United Kingdom,
Dec. 15.12.75, D.R. 4, p. 4; No. 6504/74 Preikhzas v. Federal Republic
of Germany Comm. Report 13.12.78, D.R. 16 p. 5; No. 8865/80 Verband
Deutscher Flugleiter e.v. v. Federal Republic of Germany, Dec.
10.7.81, D.R. 25 p. 252 and No. 9320/81, D v. Federal Republic of
Germany, Dec. 15.3.84, D.R. 36 p. 24. Present application
distinguished on its facts from the Inze judgment, Eur. Court H.R.,
judgment of 28 October 1987, Series A no. 126).
The Government contend that no question can arise in the
present case as to whether the domestic remedy obtained (the
settlement) was in fact adequate because it was voluntarily accepted
by the applicants, who thereby renounced the possibility of obtaining
higher compensation through a judgment of the domestic court. The
applicants not only received damages but the school authorities
repudiated the conduct complained of and demonstrated this by
suspending the teacher and subsequently issuing a formal written
warning to him (cf. aforementioned Inze judgment para. 32 final
sentence).
4. Conclusion
The Government request the Commission to declare the
application inadmissible since the applicants can no longer claim,
under Article 25 of the Convention, to be victims of a breach of the
Convention.
B. The applicants
1. As to Article 3
It is submitted that the caning of the son and its
consequences constituted degrading treatment or punishment contrary to
Article 3 of the Convention.
The applicants recall and adopt the submissions of law made
by their present representatives, in regard to the scope and effect of
Article 3, in the Petition filed with the Commission in No. 9471/81,
Warwick v. the United Kingdom.
In the instant case the elements of degrading treatment or
punishment relied upon by the applicants include:
(i) The son's immediate physical agony and subsequent severe
pain and discomfort occasioned by a caning which not only
caused extensive wealing and bruising but which actually broke
the skin and caused bleeding externally, such physical effects
being demonstrably more serious than those produced either by
the birching complained of in the Tyrer case, which "raised,
but did not cut, the applicant's skin" (Eur. Court H.R.,
judgment of 25 April 1978, Series A no. 26 para. 10) or the
caning complained of in No. 7907/77 where the blows apparently
did not break the skin and where the consequent marks were
said only to have "remained for about two months", as compared
with more than three months in the instant case (Dec. 12.7.78,
D.R. 14 pp. 205, 206);
(ii) The humiliation of the son in his own eyes through his
being forced repeatedly to adopt a grotesque and unnatural
posture for the caning;
(iii) His humiliation in the eyes of those others who
inflicted and/or witnessed and /or overheard the said caning
and its attendant elaborate ritual;
(iv) His humiliation in the eyes of those who thereafter
witnessed the physical injuries and physical and mental
anguish occasioned by the caning;
(v) The whole aura of official procedure attending the
punishment;
(vi) The absence of proper safeguards (such as prior medical
examination or the presence of a doctor during the actual
punishment) in the administration of the caning;
(vii) The relatively trivial nature of the misdemeanour or
misdemeanours for which the punishment was imposed;
(viii) The "adverse psychological effects" which were produced
upon the applicants, both in the immediate aftermath of the
punishment and by reason of the ordeal undergone by a 12 year
old boy obliged to testify and to submit to public cross-
examination in the criminal proceedings;
(ix) The further public humiliation and consequent "adverse
psychological effects" consequent upon the authorities'
manifest failure to take any steps whatsoever to restrain, in
connection with the aforesaid criminal proceedings, personal
publicity which predictibly proved intensely distressing to
both applicants.
2. As to Article 13
It is submitted that this case provided further evidence of
the existence at the material time of practices by the United Kingdom
Government connected with the use of corporal punishment in schools,
which violated both Articles 3 and 13 of the Convention. The
applicants recall and adopt the submissions of law under Article 13
of the Convention made by their present representatives, particularly
in regard to State practice, in the Petition filed with the Commission
in No. 9471/81 Warwick v. the United Kingdom. In the context of the
alleged existence of an offensive State practice, the Commission's
particular attention is drawn to the following matters which
apparently emerged during the criminal proceedings in this case, as
reported in various newspapers:
(i) The son's own statement, in oral evidence, that on two
previous occasions the teacher concerned had beaten him with a
shoe for untidy work;
(ii) The information, conveyed to the jury by counsel
prosecuting on behalf of the Crown, that boys at the high
school were habitually beaten with "bamboo canes, for
rude, disruptive behaviour and truancy", and the further
information (subsequently confirmed in the oral evidence of
the school's Senior Master) that on the morning of the son's
caning on 27 April 1982 "the teacher concerned caned four boys
in the fourth year, perfectly properly, for not attending
detention";
(iii) The information, conveyed to the jury by counsel for the
defendant teacher, that at the school "about 81 canings had
taken place during almost two years where there were no
signatures of witnesses" (with some apparent implication that
those 81 canings constituted but a part of the total recorded
in the school's punishment book which was said to have been
produced to the Crown Court);
(iv) An allegation that the Senior Master of the school had
told the teacher "that intelligent boys who were lazy in the
classroom deserved the cane to make them work";
(v) The existence, in the school's punishment book, of an
entry to the effect that in 1979 the headmaster of the lower
school had caned a boy for failing to hand in homework.
THE LAW
1. The applicants complain of the caning of the son at a State
school. They allege violations of Articles 3 (Art. 3) and 13 (Art. 13)
of the Convention.
The application was lodged solely in the name of the first
applicant, but she complained not only in respect of a violation of
her rights under the Convention but also in respect of a violation of
her son's rights. Accordingly the Commission considers that the son
is also an applicant before the Commission whose complaints may be
considered separately from his mother's.
2. The Government have submitted that the applicants may no
longer claim under Article 25 (Art. 25) of the Convention to be
victims of a violation of Articles 3 (Art. 3) and 13 (Art. 13) because
they voluntarily accepted a domestic court settlement of £300 damages,
plus costs, in respect of a civil claim for assault. The Government
also point out that one of the objects of the application has been
attained, namely, the reform of the relevant domestic law by the
Education (No. 2) Act 1986, which came into force on 15 August 1987.
The Commission notes, however, that the domestic court
settlement was agreed prior to the reform of the law, at a time when
teachers had a defence to such assault claims if the punishment was
deemed to be reasonable chastisement, because teachers were acting
in loco parentis. Damages would, therefore, only be awarded if
the punishment was deemed excessive, and not in respect of corporal
punishment as such. Moreover the Government have not provided any
examples to show that awards of damages for excessive corporal
punishment would normally have been much higher than the settlement
amount in the present case. It would appear, therefore, that the
applicants were not in a strong negotiating position when they
accepted the £300 settlement in 1986 (cf. Eur. Court H.R. Inze
judgment of 28 October 1987, Series A no. 126 paras. 30-34). Finally,
the Commission observes that the reform of the law in 1986/87 was of
no benefit to the applicant's son in 1982 when he received the
punishment of which complaint is made.
The Commission concludes that the applicants may still claim
under Article 25 (Art. 25) to be victims of a violation of Articles 3
(Art. 3) and 13 (Art. 13) of the Convention.
3. As regards the complaint of the first applicant under Article
3 (Art. 3) of the Convention, the Commission notes her statements that
she was greatly distressed upon arriving at the school after her son
had been caned and that she found herself "shaking from head to foot".
The first applicant was also said to suffer anguish as a result of
witnessing her son in a highly distressed condition, in the witness
box during the criminal proceedings against the teacher concerned,
whilst being unable at any time to comfort him in any way. The
applicants' representatives state that further anguish was caused to
the first applicant by the authorities' complete failure to take any
steps to protect the applicants from the effects of the wide publicity
of the criminal proceedings.
Article 3 (Art. 3) of the Convention provides:
"No one shall be subject to torture or to inhuman or
degrading treatment or punishment".
According to the Court and the Commission's established
case-law, a violation of this provision can only arise where the
matters complained of attain a particular degree of severity (Eur.
Court H.R. Campbell and Cosans judgment of 25 February 1982, Series A
No. 48 paras. 27 and 28). In the present case it does not appear
that the first applicant's own anguish and distress attain that degree
of seriousness and, accordingly, the Commission finds that no breach
of this provision has been established.
The first applicant further complains that she has been denied
any effective remedy before a national authority in respect of her
complaints, contrary to Article 13 (Art. 13) of the Convention.
The Commission observes that this provision is only applicable
when an applicant has an arguable claim that there has been a breach
of other rights and freedoms contained in the Convention (cf. Eur.
Court. H. R., Judgment of Silver and others of 25.3.83, Series A
No. 61 para. 113 (a)).
The Commission finds that in view of the nature of the first
applicant's personal complaint under Article 3 (Art. 3) of the
Convention and the preceding considerations, she does not have an
arguable claim under Article 13 (Art. 13) of the Convention.
It follows that the application in respect of the first
applicant's rights under the Convention is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. As regards the complaints of the second applicant, the
Commission notes that it is claimed on his behalf that he suffered
immediate physical agony and subsequent severe pain and discomfort
after receiving three strokes of the cane from one of his school
teachers. He felt humiliated by the punishment and was further
subsequently distressed when he had to testify in criminal proceedings
against the teacher, which proceedings received media publicity.
It is submitted that he is a victim of a violation of Articles
3 (Art. 3) and 13 (Art. 13) of the Convention. The Commission notes
that Article 8 (Art. 8) of the Convention is also relevant to cases of the
present kind.
The Commission has examined these aspects of the application
and finds that they raise important issues of law and facts which
require further examination on the basis of supplementary observations
from the parties.
For these reasons, the Commission
DECIDES TO ADJOURN the examination of the second
applicant's complaints;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)