Y v. THE UNITED KINGDOM



Application No. 14229/88

Y.

against

the UNITED KINGDOM

REPORT OF THE COMMISSION

(adopted on 8 October 1991)

TABLE OF CONTENTS

                                                            page

I.      INTRODUCTION (paras. 1-15)                           1-3

        A.  The application (paras. 2-4)                      1

        B.  The proceedings (paras. 5-11)                    1-2

        C.  The present Report (paras. 12-16)                2-3

II.     ESTABLISHMENT OF THE FACTS (paras. 17-33)            4-7

        A.  The particular circumstances of the case         4-5

            (paras. 17-25)

        B.  The relevant domestic law and practice           5-7

            (paras. 26-33)

III.    OPINION OF THE COMMISSION (paras. 34-60)             8-13

        A.  Complaints declared admissible                    8

            (para. 34)

        B.  Points at issue (para. 35)                        8

        C.  State responsibility (para. 36)                  8-9

        D.  As regards Article 3 of the Convention           9-11

            (paras. 37-46)

                Conclusion (para. 46)                         11

        E.  As regards Article 8 of the Convention          11-12

            (paras. 47-52)

                Conclusion (para. 52)                        12

        F.  As regards Article 13 of the Convention         12-13

            (paras. 53-57)

                Conclusion (para. 57)                        13

        G.  Recapitulation (paras. 58-60)                    13

Dissenting opinion of Mr.  Frowein                            14

Dissenting opinion of Mr.  Schermers                         15-16

Partly concurring, partly dissenting                         17

opinion of Mrs.  Liddy

APPENDIX I     History of the proceedings                   18-19

APPENDIX II    Decision on the admissibility                20-28

               of the application 13.12.90

I.      INTRODUCTION

1.     The following is an outline of the case, as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.      The application

2.     The applicant is a citizen of the United Kingdom, born in

1968 and resident in Hove, Sussex.  He was represented before the

Commission by Messrs.  Binks Stern and Partners, Solicitors, London.

3.     The application is directed against the United Kingdom.  The

respondent Government were represented by their Agent, Mr.  M.C. Wood,

succeeded by Mrs.  A.F. Glover, both of the Foreign and Commonwealth

Office.

4.     The case concerns the corporal punishment of the applicant

when he was 15 years old by the headmaster of a private school where

he was a pupil.  The application raises issues under Articles 3, 8 and

13 of the Convention.

B.      The proceedings

5.     The application was introduced on 2 September 1986 and

registered on 20 September 1988.  (Registration was not effected

earlier due to delays by the applicant in returning the application

form and replying to requests for information.)  It was originally

lodged by the applicant and his mother.  After a preliminary

examination of the case by the Rapporteur, the Commission considered

the admissibility of the application on 9 May 1989.  It decided to

give notice of the application to the respondent Government and to

invite the parties to submit written observations on the admissibility

and merits of the case.  The Government submitted their observations,

after two extensions of the time-limit, on 10 November 1989.  The

applicant submitted his observations, after an extension of the

time-limit, on 15 March 1990.

6.     On 6 October 1990 the Commission decided to invite the parties

to an oral hearing on admissibility and merits on the same day as a

hearing in a similar application, No. 13134/87, Wendy and Jeremy

Costello-Roberts v. the United Kingdom.

7.     The hearing was held on 13 December 1990.  The Government were

represented by Mrs.  A. Glover, Agent, Foreign and Commonwealth Office,

Mr.  N. Bratza, QC, Counsel, and MM. A.D. Preston, L.B. Webb and A.W.

Wilshaw, advisers from the Department of Education.  The applicant was

represented by Mr.  M.D. Gardner, Solicitor, Messrs.  Binks Stern and

Partners, Ms.  J. Beale, Counsel, and Mr.  M. Rosenbaum, adviser.

8.     At the hearing an original complaint under Article 14 of the

Convention was withdrawn by the applicant's representatives.

9.     Following the hearing, the Commission declared the applicant's

complaints under Articles 3, 8 and 13 of the Convention admissible.

It declared inadmissible that part of the application brought by the

applicant's mother.

10.     On 17 January 1991 the parties were sent the text of the

Commission's decision on admissibility and they were invited to submit

any further evidence or additional observations on the merits which

they wished.  On 19 March 1991 the Government informed the Commission

that they did not wish to submit further evidence or observations on

the case.  No further evidence or observations were submitted by the

applicant's representatives.

11.     After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement.  In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C.      The present Report

12.     The present Report has been drawn up by the Commission in

pursuance of Article 31 para. 1 of the Convention and after

deliberations and votes in plenary session, the following members

being present:

                MM.  C.A. NØRGAARD, President

                     J.A. FROWEIN

                     E. BUSUTTIL

                     G. JÖRUNDSSON

                     A. WEITZEL

                     H.G. SCHERMERS

                     H. DANELIUS

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                Mrs.  J. LIDDY

                MM.  L. LOUCAIDES

                     J.C. GEUS

                     M.P. PELLONPÄÄ

13.     The text of this Report was adopted by the Commission on

8 October 1991 and is now transmitted to the Committee of Ministers

of the Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

14.     The purpose of the Report, pursuant to Article 31 para. 1 of

the Convention, is

        1)  to establish the facts, and

        2)  to state an opinion as to whether the facts found

            disclose a breach by the State concerned of its

            obligations under the Convention.

15.     A schedule setting out the history of the proceedings before

the Commission is attached hereto as APPENDIX I and the Commission's

decision on the admissibility of the application as APPENDIX II.

16.     The pleadings of the parties, together with the documents

lodged as exhibits, are held in the archives of the Commission.

II.     ESTABLISHMENT OF THE FACTS

A.      The particular circumstances of the case

17.     In 1983 the applicant, then 15 years old, was a fifth form

pupil at BC, an independent private school.

18.     On 29 September 1983 the applicant was knocked to the floor by

a fellow pupil who was chasing a younger boy.  On the morning of the

following day the applicant defaced the cover of a file of his fellow

pupil with a pair of compasses.  The latter reported this damage to

the housemaster and the applicant was sent to the headmaster for

punishment.  The Government state that the applicant had a history of

bullying the fellow pupil concerned and that he was punished for this

behaviour, not just for vandalising the file.

19.     The applicant stated that he was caned through his trousers

four times, the headmaster taking several steps back and running at

the boy before hitting him.  The Government denied that the headmaster

administered the punishment in this manner.  The applicant claimed

that after the caning he was in tears and considerable pain.  He sat

alone for about an hour, feeling unable to walk and was excused rugby

tackling practice.  (He was the captain of the rugby team.)  The

Government stated that the applicant had not been in tears when he

left the headmaster's office and subsequently showed off the marks of

his punishment to other boys with pride.

20.     The applicant returned home from school around 17.45 hrs..  He

only showed his injuries to his mother after they had been noticed by

his sister, who drew their mother's attention to them.  The mother

stated that she was horrified and took him straight to the family

doctor.  The doctor found that the applicant had four, still painful

wheals across both buttocks, showing heavy bruising and swelling.  He

suggested that the applicant's parents take the matter up with the

school and, if necessary, the police.  This they did that same

evening, showing those concerned the injuries.  The police advised

that the injuries amounted to evidence of assault occasioning actual

bodily harm.

21.     On 3 October 1983 the parents received a letter from the

housemaster stating that the applicant had been caned for "wanton

vandalism".  The same day they had interviews with the housemaster and

headmaster at the school, but the parents were not satisfied with the

outcome.  The parents put the matter fully in the hands of the police,

who subsequently decided not to prosecute the headmaster.  The parents

then initiated civil proceedings claiming damages for assault and loss

of the term's school fees because the applicant was withdrawn from the

school.

22.     The County Court rejected the claims on 28 July 1986.

Evidence was given by a senior police surgeon at the hearing.  He

expressed the view that, from studying the photographs taken of the

applicant's injuries, the injuries were "entirely consistent with

normal caning to that part of the body which has come to be regarded

as the customary site for such punishment ...  The extent of the

injuries sustained compares with what might be expected ...  It (was)

most unlikely that excessive force was used at the time."  He conceded

that the boy would have been unable to walk for an hour afterwards.

23.     In the applicant's evidence at the hearing he acknowledged

that he had been previously caned at preparatory school - apparently

without complaint or ill effects.

24.     The County Court judge held that the parents had entered a

binding contract with the school in which it had been agreed, inter

alia, that the school was authorised to cane pupils as a disciplinary

punishment.  The use of such punishment was indicated to all parents

in the school's prospectus and regulations.  The force used in such

punishment must nevertheless be reasonable and will inevitably leave

marks and bruising.  He found nothing unusual or excessive in the

caning and considered that the parents had overreacted to the

incident.

25.     The applicant claimed that the proceedings cost his parents

£4513.36.  They did not appeal against the County Court decision as

they were advised by counsel that such an appeal had no prospects of

success whatsoever and would only involve them in even greater

expense.

B.      The relevant domestic law and practice

26.     The lawful bounds of corporal punishment were as generally

described for all English schools prior to 15 August 1987 in

Halsbury's Laws of England (Fourth Edition Volume 15) as follows:

        "66. Position of school-teachers.  The authority of a

        school-teacher is, while it exists, the same as that of

        parent.  When a parent sends his child to a school he

        delegates to the head teacher his own authority so far as

        is necessary for the child's welfare and so far as is

        necessary to maintain discipline with regard to the child

        in the child's interests and those of the school as a whole.

        The head teacher's right to punish a child extends to a

        responsible assistant teacher.

        67. Corporal punishment.  As delegate of the parental

        authority, a head teacher and a responsible assistant teacher

        have the right to inflict moderate and reasonable corporal

        punishment, using a proper instrument.  If, however, the

        punishment administered does not satisfy these criteria the

        teacher is liable in criminal proceedings and he or his

        employers are liable to a civil action for damages."

27.     The criminal law of assault sanctions corporal punishment

which is not reasonable, moderate or administered with a proper

instrument in a decent manner.  The least serious offence is common

assault pursuant to section 42 of the Offences against the Persons Act

1861.  Prosecutions are usually left to the aggrieved party.  The

maximum penalty for common assault is a £400 fine or two months'

imprisonment.  The 1861 Act provides for more serious offences of

assault occasioning actual or grievous bodily harm.  The maximum

penalty for causing actual bodily harm is five years' imprisonment.

28.     Physical assault is actionable in civil law as a form of

trespass to the person for which damages may be recovered.  Parents

are however entitled to use reasonable physical punishment on their

children and at the material time in the present case teachers were

deemed to be "in loco parentis" and thereby had a defence to civil

claims involving the moderate corporal punishment of children.  Since

the coming into force of sections 47 and 48 of the Education (No. 2)

Act 1986 on 15 August 1987 this defence no longer avails teachers in

State schools.  The present case, however, involves an independent

school, whose teachers may still administer reasonable corporal

punishment to pupils.  The concept of reasonableness permits the

courts to apply prevailing contemporary standards.

29.     An independent (or private) school is one at which full-time

education is provided for 5 or more pupils of compulsory school age,

not being a special school (i.e. one specifically organised to provide

education for pupils with learning difficulties) or a school

maintained by a public authority (section 114 (1) Education Act 1944).

30.     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, but, the Government

contend, generally the State has no power to permit or prevent the

operation of independent schools.  Such schools are not subject to

such strict maintenance standards as State subsidised schools; nor

need they employ qualified teachers, follow the State teachers' salary

scales or prepare pupils for particular examinations.  They are free

to use corporal punishment, within the bounds of the civil and

criminal law, except, since 1986, on pupils whose place is paid for by

the State under the Assisted Places Scheme.  Excessive corporal

punishment (involving successful criminal prosecutions) may provoke

the Secretary of State to use his powers under section 71 (1) of the

Education Act 1944 to initiate a complaints procedure which may result

in an independent school being struck off the register, whereupon it

becomes a criminal offence to continue running the school.  No such

issue has arisen in the past ten years.

31.     The State provides little direct funding to independent

schools, except for three out of 2,341 schools, and the payment of

certain pupils' school fees in full or in part in some 226 independent

schools.  A total of 33,336 places are thus offered out of a total of

533,977 full time pupils in independent schools (January 1988

statistics).  However such schools enjoy charitable status and are

thereby relieved from the payment of certain rates and taxes.  Many

independent schools could not operate without such tax relief.

32.     The present school participates in the Assisted Places Scheme

providing a total of 20 places for pupils whose fees are met by the

State.

33.     Parents have a duty under the Education Act 1944 to educate

their children, a duty reinforced by criminal sanctions.  They have

the choice whether to provide suitable education at home or in private

or State schools.  The Secretary of State has a duty under the same

Act to ensure certain educational standards.

III.    OPINION OF THE COMMISSION

A.      Complaints declared admissible

34.     The Commission declared admissible the applicant's complaints

that his corporal punishment at school constituted breaches of his

rights under Articles 3, 8 and 13 (Art. 3, 8, 13) of the Convention.

B.      Points at issue

35.     The following are the points at issue in the present

application:

-       whether the corporal punishment of the applicant was degrading

treatment in violation of Article 3 (Art. 3) of the Convention;

-       whether that punishment also constituted an unjustified

interference with the applicant's right to respect for his private

life and family life in violation of Article 8 (Art. 8) of the Convention;

-       whether the applicant had effective domestic remedies for his

Convention claims pursuant to Article 13 (Art. 13) of the Convention.

C.      State responsibility

36.     The Commission recalls that the punishment of the applicant

was administered by the headmaster of a private school for whose

disciplinary regime the Government had declined responsibility under

the Convention.  The Commission held in its decision on admissibility

in the present case that the United Kingdom was responsible under the

Convention, Articles 1, 3 and 8 (Art. 1, 3, 8) of which having imposed

a positive obligation on High Contracting Parties to ensure a legal

system which provides adequate protection to children's physical and

emotional integrity (see p. 26 below):

        "The Commission considers that Contracting States do have

        an obligation under Article 1 (Art. 1) of the Convention to secure

        that children within their jurisdiction are not subjected

        to torture, inhuman or degrading treatment or punishment,

        contrary to Article 3 (Art. 3) of the Convention.  This duty is

        recognised in English law which provides certain criminal

        and civil law safeguards against assault or unreasonable

        punishment.  Moreover, children subjected to, or at risk

        of being subjected to ill-treatment by their parents,

        including excessive corporal punishment, may be removed

        from their parents' custody and placed in local authority

        care.  The Commission also notes that the State obliges

        parents to educate their children, or have them educated

        in schools, and that the State has the function of

        supervising educational standards and the suitability of

        teaching staff even in independent schools.  Furthermore,

        the effect of compulsory education is that parents are

        normally obliged to put their children in charge of teachers.

        If parents choose a private school, the teachers assume the

        parental role in matters of discipline under the national

        law while the children are in their care, by virtue of the

        'in loco parentis' doctrine.  In these circumstances the

        Commission considers that the United Kingdom has a duty

        under the Convention to secure that all pupils, including

        pupils at private schools, are not exposed to treatment

        contrary to Article 3 (Art. 3) of the Convention.  The Commission

        considers that the United Kingdom's liability also extends

        to Article 8 (Art. 8) of the Convention in order to protect the

        right to respect for private life of pupils in private

        schools to the extent that corporal punishment in such

        schools may involve an unjustified interference with

        children's physical and emotional integrity."

D.      As regards Article 3 (Art. 3) of the Convention

37.     Article 3 (Art. 3) of the Convention provides as follows:

        "No one shall be subjected to torture or to inhuman or

        degrading treatment or punishment."

38.     The applicant contended that the punishment inflicted on him

by the headmaster at his school constituted degrading treatment

contrary to Article 3 (Art. 3) of the Convention.  He relied on the Court's

condemnation of the judicial corporal punishment of a teenager in the

Tyrer case as a precedent for his claim (Eur.  Court H.R., Tyrer

judgment of 25 April 1978, Series A No. 26).  He also relied on the

Commission's conclusion in the Warwick case in which a less severe

punishment to a teenage girl's hand was deemed in breach of Article 3

(Art. 3) of the Convention (No. 9471/81, Maxine and Karen Warwick v.

the United Kingdom, Comm.  Report 18.7.86, paras. 86-88).

39.     The applicant's representatives placed emphasis on the manner

in which the punishment was administered with a cane - a hard, thin,

flexible weapon designed to cause acute pain on contact and to cause

continuing pain for some time thereafter.  The applicant suffered

injury as a result of being forcefully hit four times with the cane,

which left four painful wheals and caused bruising and swelling

lasting for some time afterwards.  The applicant also submitted that

his punishment was a form of institutionalised violence with elements

of a normal, official procedure designed to humiliate, particularly

given the added indignity of being hit on the buttocks.  It was

claimed that the applicant's own behaviour which brought the

punishment on him was irrelevant to the Article 3 (Art. 3) issue.

40.     The Government contended that the punishment in this case was

moderate and reasonable and did not attain the high level of severity

condemned by the Court in the Tyrer case (ibid p. 15, para. 30).  They

denied that the punishment administered to the applicant constituted

any kind of institutionalised violence like judicial corporal

punishment.  The present case had none of the aggravating features of

judicial corporal punishment, such as the long delay between the

sentence and the administration of the punishment by a person who was

a total stranger to the offender.  The punishment of the present

applicant was moderate and the chastisement was administered with the

minimum of formality, without any of the official aura of judicial

corporal punishment, by a teacher within a school community as a

disciplinary measure for a breach of the disciplinary rules of the

community.  Nor did the present case present any of the distinctive

aggravating features identified by the Commission in the

aforementioned Warwick case.

41.     The Government denied that the punishment of the present

applicant had been administered with considerable force causing

significant injury.  They pointed out that these claims were fully

examined but rejected by the County Court, and were not supported by

the medical evidence which showed that the marks on the applicant's

buttocks were consistent with a normal caning through clothing without

excessive force.

42.     The Commission recalls that the Court held in the

aforementioned Tyrer case that for corporal punishment to be

degrading, within the meaning of Article 3 (Art. 3) of the Convention, the

humiliation and debasement involved must attain a particular level of

severity over and above the usual element of humiliation involved in

any kind of punishment.  The assessment of such matters is necessarily

relative: it depends upon 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 (ibid p. 15, para. 30).  Similar

considerations were deemed to be relevant in a case concerning

corporal punishment in Scottish State schools (Eur.  Court H.R.,

Campbell and Cosans judgment of 25 February 1982, Series A no. 48,

p. 13, para. 29).  However, the Commission, to date, has not found

that moderate corporal punishment in schools constitutes, as a general

principle, institutionalised violence of the kind observed in the

Tyrer case which would be in breach of Article 3 (Art. 3) of the Convention.

The Commission, like the Court, has always assessed claims of the

present kind on the basis of the particular circumstances of the

individual case (cf.  No. 9471/81 Maxine and Karen Warwick v. the

United Kingdom, Comm.  Report 18.7.86, in which the Commission

expressed the opinion that the hand caning and injury of Karen

Warwick, then 16 years of age, by her school headmaster in the

presence of another male teacher, had been in breach of Article 3

(Art. 3) of the Convention).

43.     The Commission has had regard to the distinctive circumstances

of the present case.  Although the County Court deemed the actual

punishment of the applicant moderate and reasonable, the Commission

considers that the injuries inflicted on the aplicant cannot be

dismissed as trivial.  The applicant was hit with such force with the

cane that four wheals appeared on his buttocks, with swelling and

bruising, causing considerable pain for some time after the act

itself.

44.     The Commission considers that such injury to a teenage boy is

unacceptable whoever were to inflict the punishment, be it parent or

teacher.  The Commission sees no justification for treating the

applicant in this way.  In particular it can find no pedagogical

reason for dealing with the applicant's bullying behaviour with a

punishment on the same bullying level, i.e. the use of superior

strength to hurt and degrade another.  The Commission notes that

little pedagogical justification was put forward by the Government on

the school's behalf.

45.     Accordingly, considering the circumstances of the present case

as a whole, the Commission is of the opinion that the corporal

punishment inflicted on the applicant caused him significant physical

injury and humiliation which attained such a level of seriousness that

it constituted degrading treatment and punishment within the meaning

of Article 3 (Art. 3) of the Convention.  The Commission also

considers, for the reasons given above (para. 36), that the State is

responsible for this ill-treatment insofar as the English legal system

authorised it and provided no effective redress.

        Conclusion

46.     The Commission concludes, by 11 votes to 2, that there has

been a violation of Article 3 (Art. 3) of the Convention.

E.      As regards Article 8 (Art. 8) of the Convention

47.     The relevant part of Article 8 (Art. 8) of the Convention

provides as follows:

        "1.  Everyone has the right to respect for his private

        and family life ...

        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 ... for the protection of health or morals, or

        for the protection of the rights and freedoms of others."

48.     The applicant submitted that the corporal punishment which he

suffered constituted an unjustified interference with his right to

respect for private and family life.  He contended that it was

irrelevant to the issue whether he had accepted the caning or what the

reasons were for his being punished, i.e. his bullying behaviour.  The

punishment in itself was an act of bullying and was hardly conducive

to him learning respect for persons weaker than himself.  The

applicant's parents had accepted corporal punishment as part of the

disciplinary regime at the school, but not to the extent inflicted on

the applicant.  However, it was submitted that their consent was

irrelevant to the applicant's Article 8 (Art. 8) rights.

49.     The Government conceded that the concept of private life is a

broad one, embracing all aspects of physical and moral integrity.

However, they considered that in the domain of corporal punishment

Article 3 (Art. 3) of the Convention is the lex specialis and no more

extensive interpretation should be given to Article 8 (Art. 8) as the

lex generalis in this sphere than is given to Article 3 (Art. 3).  The

concept of respect for private life in Article 8 (Art. 8) is a

flexible one and questions of interference depend on the circumstances

of the individual case, which in the present instance include the

reasons for the punishment, its severity, the manner of its execution,

whether corporal punishment was an established and accepted part of

the school's disciplinary procedures and the express or implied

consent of the parents to those procedures.  The Government emphasised

the clear parental consent in this case to the use of corporal

punishment as part of the school's disciplinary arrangements.  They

also emphasised the applicant's persistent bullying behaviour which

had deserved the serious punishment of caning, as the applicant had

openly admitted at the County Court hearing.  It was submitted that

the punishment was moderate and reasonable in the circumstances.  This

was borne out by the findings of the County Court.

50.     The Government could find no concrete evidence of any

interference with the applicant's right to respect for family life.

51.     The Commission refers to its finding above (para. 45) that the

present case discloses a violation of Article 3 (Art. 3) of the Convention.

The Commission considers that in the circumstances of the present case

the Article 8 (Art. 8) issue is absorbed by that finding and that

there is no need to pursue a separate examination of the applicant's

claims of an unjustified interference with his right to respect for

private and family life.

        Conclusion

52.     The Commission concludes, by 11 votes to 2, that no separate

issue arises under Article 8 (Art. 8)) of the Convention.

F.      As regards Article 13 (Art. 13) of the Convention

53.     Article 13 (Art. 13) of the Convention provides as follows:

        "Everyone whose rights and freedoms as set forth in

        this 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."

54.     The applicant submitted that, contrary to Article 13 (Art. 13)

of the Convention, he had no effective domestic remedies for his claim

of breaches of Articles 3 and 8 (Art. 3, 8).  The treatment he

received was lawful under English law, as was shown by the County

Court decision of 28 July 1986 in his case.  The applicant also relied

on the Commission's conclusion that Article 13 (Art. 13) had been

breached in the similar circumstances of Application No. 9471/81,

Maxine and Karen Warwick v. the United Kingdom (Comm.  Report 18.7.86,

paras. 94-102).

55.     The Government contended that the applicant had an effective

remedy in substance in the English law of assault, a remedy matching

the Articles 3 and 8 (3, 8) rights and adequately guaranteeing them.

The fact that the applicant's assault claim before the County Court

failed on the grounds that the punishment in question was neither

unreasonable nor excessive in all the circumstances does not suggest

that the remedy itself is either inadequate or ineffective for the

purposes of Article 13 (Art. 13) of the Convention.

56.     The Commission refers to the aforementioned Warwick case in

which a less severe punishment than that inflicted on the applicant

was deemed lawful under the English law of assault by a County Court,

but such a remedy was not considered by the Commission to be effective

for the purposes of Article 13 (Art. 13) of the Convention for the

Convention claims of Maxine and Karen Warwick.  It is also clear from

the facts of the present case that what is considered to be moderate

and reasonable punishment for pupils in private schools under the

English law of assault can nevertheless constitute degrading treatment

contrary to Article 3 of the Convention.  In these circumstances the

Commission finds that the assault remedy was inadequate for the

applicant's Convention claims.  In particular, the Commission is of

the opinion that the applicant did not have an effective remedy before

a national authority in respect of his complaint that he suffered

degrading treatment or punishment.

        Conclusion

57.     The Commission concludes, by 11 votes to 2, that there has

been a violation of Article 13 (Art. 13) of the Convention.

G.      Recapitulation

58.     The Commission concludes, by 11 votes to 2, that there has

been a violation of Article 3 (Art. 3) of the Convention (para. 46 above).

59.     The Commission concludes, by 11 votes to 2, that no separate

issue arises under Article 8 (Art. 8) of the Convention (para. 52 above).

60.     The Commission concludes, by 11 votes to 2, that there has

been a violation of Article 13 (Art. 13) of the Convention (para. 57 above).

Secretary to the Commission            President of the Commission

       (H.C. KRÜGER)                          (C.A. NØRGAARD)

Dissenting opinion of Mr.  Frowein

        I regret that I am unable to share the view of the majority of

the Commission.  A private school is not an agent of the Government.

There is no direct responsibility of the United Kingdom for acts of

teachers in private schools.  Although I accept that States have an

obligation to guarantee by law, be it legislation or common law, the

rights under Articles 3 and 8 of the Convention to pupils in private

schools, no failure by the United Kingdom in this respect has been

established.  The existence, in 1985, before the abolition of corporal

punishment in State schools, of legal rules providing for corporal

punishment in private schools cannot, in my view, create a violation

of the Convention.

Dissenting opinion of Mr.  Schermers

        The main complaint in this case is that the United Kingdom

violated Article 3 of the Convention by permitting corporal punishment

in a private school.  To find fault with the United Kingdom Government

two conditions must be fulfilled:  (1) the Government must be

responsible and (2) the punishment used must fall under Article 3.

With respect to both conditions I have severe doubts.  These

cumulative doubts prevented me from finding a violation of the

Convention.

(1)     The responsibility of the Government

        Education is a governmental task.  The Government bear

responsibility for it and they must supervise the national school

system.  However, the Convention does not prohibit the delegation of

governmental tasks to private institutions.  To some extent, the

Government will remain responsible for maintaining adequate

educational standards, but their responsibility for methods of

teaching and for matters of discipline will be less for private

schools than for public education.  Under Article 2 of the First

Protocol the Government must respect the right of parents to ensure

education in conformity with their religious and philosophical

convictions.  They must, therefore, leave some discretion to parents

with respect to the methods of education.  Only when schools treat

their pupils in a clearly unacceptable way are the Government to

interfere.

        It is of some relevance in the present case that the parents

of the applicant had entered a binding contract with the school, in

which contract it had been agreed that the school was authorised to

cane pupils as a disciplinary punishment.  It is also relevant that

the applicant himself knew of the possibility of caning and had

apparently not protested against studying under such conditions.  The

element of free choice of those concerned diminishes further any

obligation of the Government to interfere.

        I consider that there has been no violation of the Convention

in the present case, partly for the reason that the Government cannot

be held responsible for the disciplinary acts committed by the

management of a private school, and partly for the reason that,

insofar as there may be Government responsibility, their abstaining

from interference in the management of the private school in question

is not of such gravity that it leads to a violation of the Convention.

(2)     Responsibility presumed

        Even assuming the responsibility of the Government is engaged

in this case, I would query whether all corporal punishment is

proscribed by the Convention.  In my personal opinion all corporal

punishment is wrong from an educational point of view.  The use of

violence breeds violence.  A person having been subjected to violence

in his education will be more inclined to use violence against others,

than a person educated without physical force.  On the other hand, it

must be accepted that some people are of the opinion that corporal

punishment can help to promote discipline and discipline is important

in education, in particular in schools.  As Article 2 of the First

Protocol guarantees a right of parents to decide on the education of

their children, one must respect the right of parents to use moderate

corporal punishment against their children or to send their children

to a school which uses such punishment.  A total prohibition of all

corporal punishment does not yet seem to be called for by present

Western European standards.

        Of course, there must be limits.  Corporal punishment may

never be of such a nature that it infringes Article 3 of the

Convention.  In many cases the Court and the Commission have held that

acts of ill-treatment must be of a particularly serious nature to fall

foul of Article 3.  The main question in the present case is whether

the punishment was of such a serious nature that it infringed Article

3.  It is a matter of where one sets the threshold.  In the present

case the County Court rejected a claim for damages for assault on the

grounds that the punishment inflicted on the applicant had been

moderate and reasonable.  Apparently it accepted the view expressed by

a senior police surgeon that the injuries were "entirely consistent

with normal caning" (whatever that may be).  The rejection of the

claim for damages demonstrates that the County Court considered the

corporal punishment in this case of a severity falling short of the

Article 3 threshold on the domestic level.  The majority of the

Commission thinks otherwise, mainly on the basis of the submissions of

the applicant, as the Government were unable to offer more factual

data.  Considering the entire educational situation in the United

Kingdom, as it has been described to the Commission, taking into

account the view of the competent school authorities that moderate

corporal punishment is an effective way of maintaining discipline and

given the Convention case-law on the severity of the punishment

proscribed by Article 3, I find insufficient grounds for concluding

that this provision has been violated.

        Article 13

        In my opinion, the complaint under Article 13 is manifestly

ill-founded.  According to English criminal law, assault is punishable

under the Offences against the Person Act 1861, as amended.  Under

English civil law, physical assault is actionable as a form of trespass

to the person, giving the assault victim the right to recover damages.

It is true that in certain circumstances no damages will be awarded if

the defendant is able to justify the assault on the ground that it was

moderate and reasonable chastisement in the exercise of parental or

other authority.  It is for the courts to decide whether a particular

chastisement is reasonable or not and it may well be that the

requirements for reasonableness change over the years.  The fact that

in previous cases County Courts may have considered more severe

punishments lawful does not, in my opinion, mean that no effective

remedy was available in the present case.  In order to be effective a

remedy does not need to be successful.  In my opinion, Article 13 is

not violated because remedies were available under English law.

Partly concurring, partly dissenting opinion of Mrs.  Liddy

        With some hesitation I have reached the conclusion that the

applicant in this case was subjected to a punishment in which the

element of humiliation attained the level inherent in the notion of

"degrading punishment".  As stated by the Court in the Tyrer case,

judgment of 25 April 1978 at paragraph 30, the assessment of whether a

punishment is degrading and in breach of Article 3 "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".

        In the Tyrer case, the Court found that the birching of a

fifteen years old youth over the bare posterior by the police

authorities constituted an assault on his dignity and physical

integrity to such a degree as to constitute degrading treatment,

notwithstanding that he did not suffer any severe or long-lasting

physical effects.  In the present case the caning of a fifteen year

old youth on the buttocks through his trousers by the headmaster

likewise constituted an assault on the dignity and physical integrity

of the individual.  It is true that the surrounding circumstances were

not quite as institutionalised as in the Tyrer case, where the

punishment was ordered by the judicial authorities, but nonetheless

the degree of humiliation (however disguised by bravado) must have

been intense for a youth of that age.  I do not consider that the

surrounding circumstances in the present case were so different as to

distinguish the case from the Tyrer case.

        In its judgment of 28 November 1988 in the Nielsen case the

Court said, at paragraph 72, that the rights of the holder of parental

authority cannot be unlimited and that it is incumbent on the State to

provide safeguards against abuse.  While the parents had agreed that

the school was authorised to cane pupils as a disciplinary punishment,

the rights of the parents could not, in my opinion, be exercised so as

to authorise punishment contrary to Article 3.  It is true that the

law provides safeguards against immoderate and unreasonable

punishment, but the evidence before and the findings of the County

Court judge in this case indicate that the primary concern of the law

is to prevent excessive force.  It has not been established that the

law provides safeguards against the severe humiliation of a near-adult

by a caning across what was referred to as "the customary site for

such punishment" (see paragraphs 22 and 24 of the Report).  While it

cannot be excluded that, had the applicant appealed against the County

Court decision, the appeal court might have considered such punishment

unreasonable, the Government have failed to discharge the onus on them

under Article 3 to show that as a matter of fact and in domestic law

in this case there were safeguards against the degrading punishment

which I consider the applicant suffered.

        Having reached the conclusion that there was a violation of

Article 3, I agree that no separate issue arises under Article 8.

Appendix I

HISTORY OF THE PROCEEDINGS

     Date                                  Item

________________________________________________________________

02.09.86                        Introduction of application

20.09.88                        Registration of application

Examination of admissibility

09.05.89                        Commission's decision to give notice

                                of application to respondent

                                Government and to invite parties to

                                submit written observations on

                                admissibility and merits

10.11.89                        Government's observations

15.03.90                        Applicant's observations

06.10.90                        Commission's decision to hold

                                hearings in this case and a similar

                                application No. 13134/87

13.12.90                        Hearing on admissibility and merits,

                                the parties being represented as

                                follows:

                                Government:

                                Mrs.  A. Glover, Agent

                                Mr.  N. Bratza, QC, Counsel

                                Mr.  A.D. Preston ) Advisers

                                Mr.  L.B. Webb    ) Department of

                                Mr.  A.W. Wilshaw ) Education

                                Applicant:

                                Mr.  M.D. Gardner, Solicitor

                                Ms.  J. Beale, Counsel

                                Mr.  M. Rosenbaum, Adviser

13.12.90                        Commission's deliberations and

                                decision to declare application

                                partially admissible

Examination of the merits

17.01.91                        Parties invited to submit such further

                                observations as they wished

19.03.91                        Information from the Government

02.03.91                        Consideration of the state of

                                proceedings

06.07.91                        Consideration of the state of

                                proceedings

08.10.91                        Commission's deliberations on the

                                merits and on the text of its

                                Article 31 Report.  Final votes.

                                Adoption of Report

 

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