CASE OF TYRER v. THE UNITED KINGDOM

1. 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.
2. 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.
3. 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).
4. 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.
5. 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.
6. 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.
7. The oral hearings were held in public at the Human Rights Building, Strasbourg, on 17 January 1978.
There appeared before the Court:
Mr. D.H. ANDERSON, Legal Counsellor,
Foreign and Commonwealth Office, Agent,
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;
Mr. L. KELLBERG, Principal 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.
8. 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.
A. The applicant ’ s punishment
9. 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.
10. 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.
11. 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:
(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.
12. 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,
(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:
Length from end of handle to tip of spray 40 inches
Circumference of spray at centre 6 inches
Circumference of handle at top of binding 3 1/2 inches
Circumference of handle 6 inches from end 3 1/4 inches
2. In all cases where a Court is empowered to impose a sentence of whipping a medical report as to whether the offender is fit to receive the punishment will be made available to the Magistrates before they consider sentence. Arrangements for this report will be made by the Clerk of the Court.
3. The whipping shall be inflicted on the posterior over the child ’ s ordinary cloth trousers.
4. A medical practitioner shall be present during a birching and may at his discretion order the stopping of the punishment at any time. Where a birching has been stopped on medical grounds a report of the facts shall be forwarded immediately to His Excellency."
With reference to paragraph 3 of the Directive, the Court was advised at the hearing on 17 January 1978 that, in the light of the Commission ’ s report, an amendment had recently been made by the Isle of Man Government whereby the punishment is to be administered over ordinary cloth trousers in all cases irrespective of the offender ’ s age.
13. 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.
14. 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.
15. 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.
16. 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.
17. The name and address of a juvenile sentenced in the Isle of Man, whether to corporal punishment or otherwise, are not published.
18. 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
19. 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.
20. 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.
21. 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.
22. 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.
23. During the hearing of 17 January 1978, reference was made to the fact that the declaration by the Government recognising the jurisdiction of the Court as compulsory in respect of the Isle of Man expired on 13 January 1976, whereas the case was brought before the Court by the Commission on 11 March 1977.
In its request to the Court, the Commission indicated that it had had regard to the various renewals of the said declaration and particularly the renewal dated 21 April 1972 which was in force at the time of the introduction of the application before the Commission. For their part, the Government, which had not filed any preliminary objection pursuant to Rule 46 of the Rules of Court, stated at the hearing that they consented to the Court having jurisdiction in accordance with Article 48 (art. 48), although it was not to be inferred that they necessarily agreed with the reasoning in the Commission ’ s request.
The Court finds that in these circumstances its jurisdiction is established.
B. The request to strike the case out of the Court ’ s list
24. The Attorney-General for the Isle of Man first submitted that the Court should strike the case out of its list in view of the fact that Mr. Tyrer, who had lodged his application with the Commission when he was under age, had declared, after he had attained full age, that he wished to withdraw it.
On 9 March 1976, the Commission had decided, pursuant to the then Rule 43 of its Rules of Procedure, that it could not accede to the applicant ’ s request since the case raised questions of a general character affecting the observance of the Convention which necessitated a further examination of the issues involved (see paragraph 21 above). Before the Court, the principal delegate submitted that the applicant ’ s wishes must be subordinated to the general interest to ensure respect for human rights as defined in the Convention. He added that the Commission had never examined the reasons for, and circumstances surrounding, the applicant ’ s request.
The Attorney-General for the Isle of Man conceded that, under its Rules of Procedure, the Commission was entitled to refuse, on the grounds mentioned above, to allow Mr. Tyrer to withdraw. He did not suggest that there had been any irregularity in the Commission ’ s decision; he merely contended that in the particular circumstances the applicant ’ s wishes should supersede the general character of the case and that therefore the Court should consider striking the case out of its list under Rule 47 of its Rules.
25. The regularity of the Commission ’ s decision to continue its examination of the application is not in issue and the Court has only to decide whether or not the case should be struck out.
Paragraph 1 of Rule 47 is not applicable in the circumstances. Firstly, when Mr. Tyrer declared that he wished to withdraw his application the case was still pending before the Commission. Secondly that declaration, coming from an individual who is not entitled under the Convention to refer cases to the Court, cannot entail the effects of a discontinuance of the present proceedings (De Becker judgment of 27 March 1962, Series A no. 4, p. 23, para. 4). Above all, paragraph 1 covers solely discontinuance by "a Party which has brought the case before the Court", that is to say by an Applicant Contracting State in proceedings before the Court (paragraph (h) of Rule 1; Kjeldsen, Busk Madsen and Pedersen judgment of 7 December 1976, Series A no. 23, p. 21, para. 47).
Paragraph 2 of Rule 47 provides that the Court may, subject to paragraph 3, strike out of its list a case brought before it by the Commission but only when the Court "is informed of a friendly settlement, arrangement or other fact of a kind to provide a solution of the matter". As mentioned above, the Commission never examined the circumstances surrounding the applicant ’ s request and the Court has been supplied with no further information regarding those circumstances. Thus, the Court has received no indication that Mr. Tyrer ’ s declaration of withdrawal is a fact of a kind to provide a solution of the matter.
26. The Attorney-General for the Isle of Man further submitted that the Court should strike the case out of its list when the Island ’ s legislature had adopted the proposal to abolish corporal punishment as a penalty for, inter alia, the offence of assault occasioning actual bodily harm of which the applicant had been convicted (see paragraph 16 above). The principal delegate emphasised that nothing short of total abolition of judicial corporal punishment would, in the view of the Commission, be acceptable as a "fact of a kind to provide a solution of the matter" in the context of Rule 47 (2).
The Court does not consider that the legislation envisaged can be regarded as such a fact. There is no certainty as to whether and when the proposal will become law and, even if adopted, it cannot erase a punishment already inflicted. What is more, the proposed legislation does not go to the substance of the issue before the Court, namely whether judicial corporal punishment as inflicted on the applicant in accordance with Manx legislation is contrary to the Convention.
27. Accordingly, the Court decides not to strike the case out of its list on either of the grounds advanced.
28. The applicant claimed before the Commission that the facts of his case constituted a breach of Article 3 (art. 3) of the Convention which provides:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
He alleged that there had been torture or inhuman or degrading treatment or punishment, or any combination thereof.
In its report, the Commission expressed the opinion that judicial corporal punishment, being degrading, constituted a breach of Article 3 (art. 3) and that, consequently, its infliction on the applicant was in violation of that provision.
29. The Court shares the Commission ’ s view that Mr. Tyrer ’ s punishment did not amount to "torture" within the meaning of Article 3 (art. 3). The Court does not consider that the facts of this particular case reveal that the applicant underwent suffering of the level inherent in this notion as it was interpreted and applied by the Court in its judgment of 18 January 1978 (Ireland v. the United Kingdom, Series A no. 25, pp. 66-67 and 68, paras. 167 and 174).
That judgment also contains various indications concerning the notions of "inhuman treatment" and "degrading treatment" but it deliberately left aside the notions of "inhuman punishment" and "degrading punishment" which alone are relevant in the present case (ibid., p. 65, para. 164). Those indications accordingly cannot, as such, serve here. Nevertheless, it remains true that the suffering occasioned must attain a particular level before a punishment can be classified as "inhuman" within the meaning of Article 3 (art. 3). Here again, the Court does not consider on the facts of the case that that level was attained and it therefore concurs with the Commission that the penalty imposed on Mr. Tyrer was not "inhuman punishment" within the meaning of Article 3 (art. 3). Accordingly, the only question for decision is whether he was subjected to a "degrading punishment" contrary to that Article (art. 3).
30. The Court notes first of all that a person may be humiliated by the mere fact of being criminally convicted. However, what is relevant for the purposes of Article 3 (art. 3) is that he should be humiliated not simply by his conviction but by the execution of the punishment which is imposed on him. In fact, in most if not all cases this may be one of the effects of judicial punishment, involving as it does unwilling subjection to the demands of the penal system.
However, as the Court pointed out in its judgment of 18 January 1978 in the case of Ireland v. the United Kingdom (Series A no. 25, p. 65, para. 163), the prohibition contained in Article 3 (art. 3) of the Convention is absolute: no provision is made for exceptions and, under Article 15 (2) (art. 15-2) there can be no derogation from Article 3 (art. 3). It would be absurd to hold that judicial punishment generally, by reason of its usual and perhaps almost inevitable element of humiliation, is "degrading" within the meaning of Article 3 (art. 3). Some further criterion must be read into the text. Indeed, Article 3 (art. 3), by expressly prohibiting "inhuman" and "degrading" punishment, implies that there is a distinction between such punishment and punishment in general.
In the Court ’ s view, in order for a punishment to be "degrading" and in breach of Article 3 (art. 3), the humiliation or debasement involved must attain a particular level and must in any event be other than that usual element of humiliation referred to in the preceding subparagraph. The assessment is, in the nature of things, relative: it depends on all the circumstances of the case and, in particular, on the nature and context of the punishment itself and the manner and method of its execution.
31. The Attorney-General for the Isle of Man argued that the judicial corporal punishment at issue in this case was not in breach of the Convention since it did not outrage public opinion in the Island. However, even assuming that local public opinion can have an incidence on the interpretation of the concept of "degrading punishment" appearing in Article 3 (art. 3), the Court does not regard it as established that judicial corporal punishment is not considered degrading by those members of the Manx population who favour its retention: it might well be that one of the reasons why they view the penalty as an effective deterrent is precisely the element of degradation which it involves. As regards their belief that judicial corporal punishment deters criminals, it must be pointed out that a punishment does not lose its degrading character just because it is believed to be, or actually is, an effective deterrent or aid to crime control. Above all, as the Court must emphasise, it is never permissible to have recourse to punishments which are contrary to Article 3 (art. 3), whatever their deterrent effect may be.
The Court must also recall that the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions. In the case now before it the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field. Indeed, the Attorney-General for the Isle of Man mentioned that, for many years, the provisions of Manx legislation concerning judicial corporal punishment had been under review.
32. As regards the manner and method of execution of the birching inflicted on Mr. Tyrer, the Attorney-General for the Isle of Man drew particular attention to the fact that the punishment was carried out in private and without publication of the name of the offender.
Publicity may be a relevant factor in assessing whether a punishment is "degrading" within the meaning of Article 3 (art. 3), but the Court does not consider that absence of publicity will necessarily prevent a given punishment from falling into that category: it may well suffice that the victim is humiliated in his own eyes, even if not in the eyes of others.
The Court notes that the relevant Isle of Man legislation, as well as giving the offender a right of appeal against sentence, provides for certain safeguards. Thus, there is a prior medical examination; the number of strokes and dimensions of the birch are regulated in detail; a doctor is present and may order the punishment to be stopped; in the case of a child or young person, the parent may attend if he so desires; the birching is carried out by a police constable in the presence of a more senior colleague.
33. Nevertheless, the Court must consider whether the other circumstances of the applicant ’ s punishment were such as to make it "degrading" within the meaning of Article 3 (art. 3).
The very nature of judicial corporal punishment is that it involves one human being inflicting physical violence on another human being. Furthermore, it is institutionalised violence that is in the present case violence permitted by the law, ordered by the judicial authorities of the State and carried out by the police authorities of the State (see paragraph 10 above). Thus, although the applicant did not suffer any severe or long-lasting physical effects, his punishment - whereby he was treated as an object in the power of the authorities - constituted an assault on precisely that which it is one of the main purposes of Article 3 (art. 3) to protect, namely a person ’ s dignity and physical integrity. Neither can it be excluded that the punishment may have had adverse psychological effects.
The institutionalised character of this violence is further compounded by the whole aura of official procedure attending the punishment and by the fact that those inflicting it were total strangers to the offender.
Admittedly, the relevant legislation provides that in any event birching shall not take place later than six months after the passing of sentence. However, this does not alter the fact that there had been an interval of several weeks since the applicant ’ s conviction by the juvenile court and a considerable delay in the police station where the punishment was carried out. Accordingly, in addition to the physical pain he experienced, Mr. Tyrer was subjected to the mental anguish of anticipating the violence he was to have inflicted on him.
34. In the present case, the Court does not consider it relevant that the sentence of judicial corporal punishment was imposed on the applicant for an offence of violence. Neither does it consider it relevant that, for Mr. Tyrer, birching was an alternative to a period of detention: the fact that one penalty may be preferable to, or have less adverse effects or be less serious than, another penalty does not of itself mean that the first penalty is not "degrading" within the meaning of Article 3 (art. 3).
35. Accordingly, viewing these circumstances as a whole, the Court finds that the applicant was subjected to a punishment in which the element of humiliation attained the level inherent in the notion of "degrading punishment" as explained at paragraph 30 above. The indignity of having the punishment administered over the bare posterior aggravated to some extent the degrading character of the applicant ’ s punishment but it was not the only or determining factor.
The Court therefore concludes that the judicial corporal punishment inflicted on the applicant amounted to degrading punishment within the meaning of Article 3 (art. 3) of the Convention.
36. The Court must now consider whether its above conclusion is affected by certain arguments advanced under Article 63 of the Convention, paragraphs 1 and 3 whereof (art. 63-1, art. 63-3) read as follows:
"1. Any State may at the time of its ratification or at any time thereafter declare by notification addressed to the Secretary-General of the Council of Europe that the present Convention shall extend to all or any of the territories for whose international relations it is responsible.
3. The provisions of this Convention shall be applied in such territories with due regard, however, to local requirements."
37. In respect of Article 63 (3) (art. 63-3), the Attorney-General for the Isle of Man submitted to the Court:
"firstly that judicial corporal punishment as practised in the Isle of Man in the case of the applicant is not a degrading punishment and that the United Kingdom is not in breach of the Convention by virtue of Article 63 (3) (art. 63-3); secondly ... that, having due regard to the local circumstances in the Island ... the continued use of judicial corporal punishment on a limited scale is justified as a deterrent and consequently the United Kingdom would not be in breach of the Convention."
The Attorney-General relied in particular on the state of opinion in the Island and referred, inter alia, to a recent debate in the Manx legislature and a recent petition both of which had indicated that there was a large majority in favour of retention of judicial corporal punishment in specified circumstances (see paragraph 15 above). That majority, he said, not only did not consider this penalty to be degrading but also saw it as an effective deterrent and as a desirable safeguard in the control of law and order. He also cited statistics in support of these views (see paragraph 18 above).
The principal delegate of the Commission submitted, as regards local conditions in the Isle of Man, that it was difficult to conceive that any local characteristics could be put forward to justify a breach of Article 3 (art. 3). He pointed out that no specific local conditions had been pleaded save the belief of many people in the Isle of Man that judicial corporal punishment is an effective deterrent and added that, even assuming that such a belief could constitute a local condition, the Commission did not consider that if affected its conclusion of a violation of Article 3 (art. 3). Finally, he stated that the Commission ’ s view that there were no significant social or cultural differences between the Isle of Man and the United Kingdom which could be relevant to the application of Article 3 (art. 3) in this case amounted to saying that Article 63 (3) (art. 63-3) in fact cannot be called in aid as regards territories with such close ties and affinities as in the case of the Isle of Man and the United Kingdom.
38. The question therefore is to decide whether there are in the Isle of Man local requirements within the meaning of Article 63 (3) (art. 63-3) such that the penalty in question, in spite of its degrading character (see paragraph 35 above), does not entail a breach of Article 3 (art. 3).
The Court notes firstly that the Attorney-General for the Isle of Man spoke more of circumstances and conditions than of requirements in the Island. The undoubtedly sincere beliefs on the part of members of the local population afford some indication that judicial corporal punishment is considered necessary in the Isle of Man as a deterrent and to maintain law and order. However, for the application of Article 63 (3) (art. 63-3), more would be needed: there would have to be positive and conclusive proof of a requirement and the Court could not regard beliefs and local public opinion on their own as constituting such proof.
Moreover, even assuming that judicial corporal punishment did possess those advantages which are attributed to it by local public opinion, there is no evidence before the Court to show that law and order in the Isle of Man could not be maintained without recourse to that punishment. In this connection, it is noteworthy that, in the great majority of the member States of the Council of Europe, judicial corporal punishment is not, it appears, used and, indeed, in some of them, has never existed in modern times; in the Isle of Man itself, as already mentioned, the relevant legislation has been under review for many years. If nothing else, this casts doubt on whether the availability of this penalty is a requirement for the maintenance of law and order in a European country. The Isle of Man not only enjoys long-established and highly-developed political, social and cultural traditions but is an up-to-date society. Historically, geographically and culturally, the Island has always been included in the European family of nations and must be regarded as sharing fully that "common heritage of political traditions, ideals, freedom and the rule of law" to which the Preamble to the Convention refers. The Court notes, in this connection, that the system established by Article 63 (art. 63) was primarily designed to meet the fact that, when the Convention was drafted, there were still certain colonial territories whose state of civilisation did not, it was thought, permit the full application of the Convention.
Finally and above all, even if law and order in the Isle of Man could not be maintained without recourse to judicial corporal punishment, this would not render its use compatible with the Convention. As the Court has already recalled, the prohibition contained in Article 3 (art. 3) is absolute and, under Article 15 (2) (art. 15-2), the Contracting States may not derogate from Article 3 (art. 3) even in the event of war or other public emergency threatening the life of the nation. Likewise, in the Court ’ s view, no local requirement relative to the maintenance of law and order would entitle any of those States, under Article 63 (art. 63), to make use of a punishment contrary to Article 3 (art. 3).
39. For these reasons, the Court finds that there are no local requirements affecting the application of Article 3 (art. 3) in the Isle of Man and, accordingly, that the applicant ’ s judicial corporal punishment constituted a violation of that Article.
40. In view of its above conclusion, the Court does not consider it necessary to examine, in connection with Article 63 (1) (art. 63-1), the question of the constitutional status of the Isle of Man in relation to the United Kingdom.