PROCEDURE

The Tyrer case was referred to the Court by the European Commission of Human Rights (hereinafter referred to as “the Commission“). The case originated in an application against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission on 21 September 1972 under Article 25 (art. 25) of the Convention by a United Kingdom citizen, Mr. Anthony M. Tyrer.

The Commission’s request, to which was attached the report provided for under Article 31 (art. 31) of the Convention, was lodged with the registry of the Court on 11 March 1977, within the period of three months laid down by Articles 32 para. 1 and 47 (art. 32-1, art. 47). The request referred to:

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.

The Chamber of seven judges to be constituted included, as ex officio members, Sir Gerald Fitzmaurice, the elected judge of British nationality (Article 43 of the Convention) (art. 43), and Mr. G. Balladore Pallieri, the President of the Court (Rule 21 para. 3 (b) of the Rules of Court). On 23 March 1977, the President of the Court drew by lot, in the presence of the Deputy Registrar, the names of the five other members, namely Mr. J. Cremona, Mrs. H. Pedersen, Mr. Thór Vilhjálmsson, Mr. P.-H. Teitgen and Mr. F. Matscher (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43). Mr. Balladore Pallieri assumed the office of President of the Chamber (Rule 21 para. 5).

The President of the Chamber ascertained, through the Registrar, the views of the Agent of the Government of the United Kingdom (hereinafter called “the Government“) and the delegates of the Commission regarding the procedure to be followed; having regard to their concurring statements, the President decided by an Order of 28 June 1977 that it was not necessary at that stage for memorials to be filed. He also instructed the Registrar to invite the Commission to produce certain documents and these were received at the registry on 7 July.

After consulting, through the Registrar, the Agent of the Government and the delegates of the Commission, the President decided by an Order of 1 August 1977 that the oral hearings should open on 17 January 1978.

By letter of 1 December 1977, the Agent of the Government transmitted a request by the Government of the Isle of Man that the Chamber should carry out an investigation on the spot in the Island pursuant to Rule 38 para. 2 of the Rules of Court. The purpose of the visit as envisaged by the Government of the Isle of Man was that the Court should “become acquainted at first hand with local circumstances and requirements in the Isle of Man, having regard to Article 63 para. 3 (art. 63-3) of the Convention, by meeting ... leading members of the Manx community“. 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.

The oral hearings were held in public at the Human Rights Building, Strasbourg, on 17 January 1978. 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.

During its deliberations from 17 to 19 January 1978, the Chamber decided that the very fully information which had been supplied to the Court concerning this case rendered it unnecessary to carry out the investigation requested. The President informed the Agent of the Government of this decision on 19 January.

AS TO THE FACTS

A. The applicant’s punishment

Mr. Anthony M. Tyrer, a citizen of the United Kingdom born on 21 September 1956, is resident in Castletown, Isle of Man. On 7 March 1972, being then aged 15 and of previous good character, he pleaded guilty before the local juvenile court to unlawful assault occasioning actual bodily harm to a senior pupil at his school. The assault, committed by the applicant in company with three other boys, was apparently motivated by the fact that the victim had reported the boys for taking beer into the school, as a result of which they had been caned. The applicant was sentenced on the same day to three strokes of the birch in accordance with the relevant legislation (see paragraph 11 below). 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.

After waiting in a police station for a considerable time for a doctor to arrive, Mr. Tyrer was birched late in the afternoon of the same day. His father and a doctor were present. The applicant was made to take down his trousers and underpants and bend over a table; he was held by two policemen whilst a third administered the punishment, pieces of the birch breaking at the first stroke. The applicant’s father lost his self-control and after the third stroke “went for“ one of the policemen and had to be restrained. The birching raised, but did not cut, the applicant’s skin and he was sore for about a week and a half afterwards.

The applicant was sentenced pursuant to section 56 (1) of the Petty Sessions and Summary Jurisdiction Act 1927 (as amended by section 8 of the Summary Jurisdiction Act 1960) whereby: “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.

Execution of the sentence was governed by the following provisions: (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

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.

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

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

The Isle of Man is not a part of the United Kingdom but a dependency of the Crown with its own government, legislature and courts and its own administrative, fiscal and legal systems. The Crown is ultimately responsible for the good government of the Island and acts in this respect through the Privy Council on the recommendation of Ministers of the United Kingdom Government in their capacity as Privy Counsellors. In that capacity, the Home Secretary is charged with prime responsibility for Isle of Man affairs. 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.

Judicial corporal punishment of adults and juveniles was abolished in England, Wales and Scotland in 1948 and in Northern Ireland in 1968. That abolition followed upon the recommendations of the Departmental Committee on Corporal Punishment (known as the Cadogan Committee) which issued its report in 1938. The standing Advisory Council on the Treatment of Offenders, in its report of 1960 (known as the Barry report), endorsed the findings of the Cadogan Committee and concluded that corporal punishment should not be reintroduced as a judicial penalty in respect of any categories of offencers or of offenders.

The punishment remained in existence in the Isle of Man. When Tynwald examined the question in 1963 and 1965, it decided to retain judicial corporal punishment, which was considered a deterrent to hooligans visiting the Island as tourists and, more generally, a means of preserving law and order. 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.

While under various provisions judicial corporal punishment could be imposed on males for a number of offences, since 1969 its application has apparently been restricted in practice to offences of violence. 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.

The name and address of a juvenile sentenced in the Isle of Man, whether to corporal punishment or otherwise, are not published.

According to figures cited before the Court by the Attorney- General for the Isle of Man, judicial corporal punishment was inflicted in 2 cases in 1966, in 4 cases in 1967, in 1 case in 1968, in 7 cases in 1969, in 3 cases in 1970, in 0 cases in 1971, in 4 cases in 1972, in 0 cases in 1973, in 2 cases in 1974, in 1 case in 1975, in 1 case in 1976 and in 0 cases in 1977. The average number of crimes of violence to the person per annum was: between 1966 and 1968 - 35; between 1969 and 1971 - 52; between 1972 and 1974 - 59; and between 1975 and 1977 - 56. In 1975 there were 65 crimes of violence to the person, in 1976 58 and in 1977 approximately 46. 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

In his application, lodged with the Commission on 21 September 1972, Mr. Tyrer complained, in particular, that:

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.

In its decision of 19 July 1974, the Commission, having considered ex officio that the facts of the case raised issues of discrimination on grounds of sex and/or age contrary to Article 14 of the Convention, taken together with Article 3 (art. 14+3):

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.

In January 1976, the Commission was notified that the applicant wished to withdraw his application. However, on 9 March 1976, the Commission decided that it could not accede to this 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“. The applicant took no further part in the proceedings.

In its report of 14 December 1976, the Commission expressed the opinion:

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.