TYRER CASE

Summary

Facts of the case

Anthony Tyrer, resident in Castletown, Isle of Man, aged 15, pleaded guilty before the local juvenile court to unlawful assault occasioning actual bodily harm to a senior pupil at his school

Sentenced to three strokes of the birch Appealed against sentence to the High Court

of Justice of the Isle of Man Appeal dismissed: unprovoked assault

occasioning actual bodily harm – very serious; no reason to interfere with the sentence

Punishment

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)

‘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 30 pounds or to be imprisoned for a term not exceeding 6 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’

‘child’ vs. ‘young person’

Child – an individual over the age of 10 and under 14

Young person – an individual over the age of 14 and under 17

Summary Jurisdiction Act 1960 (a) The instrument: cane or a birch rod (b) child: no more than 6 strokes; other

persons: no more than 12 strokes (c) whipping shall be inflicted privately (d) whipping shall be inflicted by a

constable in the presence of a police officer of higher rank; in the case of a child or a young person, also in the presence of a parent or guardian if he so desires

B. General Background

Isle of Man – crown dependency with its own government, legislature and courts

The Crown – responsible for the good government of the Island through the Privy Council

Home Secretary – charged with prime responsibility for Isle of Man

B. General Background

Prior to October 1950 international treaties applicable, in the absence of a contrary provision, to the Isle of Man

After that – international treaties applicable if here was an express inclusion

European Convention on Human Rights – applicable to the Isle of Man

B. General Background

The Island’s parliament, Tynwald, one of the oldest in Europe

Composition of Tynwald: Lieutenant-General appointed by the Crown, an upper house (Legislative Council) and a lower house (House of Keys)

Tynwald legislates in domestic matters, the laws requiring ratification by the Queen

B. General Background

UK Parliament can pass laws applicable to the Isle of Man, but does not legislate on domestic affairs, such as penal policy, without its consent

This constitutional convention followed unless overridden by some other consideration, such as an international treaty obligation

Judicial corporal punishment Abolished in England, Wales and Scotland in

1948 and in Northern Ireland in 1968 Abolition followed upon the

recommendation of the Cadogan Committee which issued its report in 1938

The Berry report endorsed its findings in 1960; corporal punishment should not be reintroduced as a judicial penalty for any offences or offenders

Judicial corporal punishment Tynwald examined the question in 1963

and 1965 and decided to retain corporal punishment which was considered as a deterrent to hooligans visiting the Island and a means of preserving law and order

In May 1977 Tynwald passed a resolution retaining corporal punishmen for violent crimes against person committerd by males under the age of 21

Judicial corporal punishment 1978 Attorney-General informed Tynwald

of a privately organized petition in favour of the retention of corporal punishment; since 1969 restricted to offences of violence

Criminal Law Bill 1978 – a proposal to limit the use of corporal punishment to young males for the more serious offences of violence

The offence for which Mr Tyrer was charged – omitted from the list of offences

Proceedings before the Commission Breach of Article 3 Destructive of family well-being and contrary

to Article 8 No remedies to rectify the violation,

inconsistent with Article 13 Discriminatory within the meaning of Article

14 Violation of Article 1 Discrimination on grounds of sex/age

contrary to Aricle 14 Admissible: Aricle 3

Proceedings before the Commission In January 1976 the applicant wished to

withdraw his application The Commission 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’

Legal issues

The Commission expressed the opinion that corporal punishment, being degrading, constituted breach of Aricle 3

The Court shares the Commission’s view that the punishment did not amount to ‘torture’ or ‘inhuman punishment’

Degrading punishment

A person may be humiliated by the mere fact of being criminally convicted

Judicial punishment – unwilling subjection to the demands of the penal system

No derogation from Article 3

Degrading punishment

Attorney-General of the Isle of Man argued that the punishment was not in breach of Art. 3 since it did not outrage the public opinion

Counter-argument – it may be regarded as effective deterrent precisely because of the element of degradation it involves

Punishment does not lose its degrading character because it is an effective deterrent or aid to crime control

Degrading punishment

Convention – a living instrument and should be interpreted in the light of present-day conditions

Judgment

Punishment – carried out in private and without publication of the name of the offender

It may suffice that the victim is humiliated in his own eyes, even if not in the eyes of others

Corporal punishment - one human being inflicting physical violence on another human being

Institutionalized violence permitted by the law, ordered by judicial authorities and carried out by the police authorities

Judgment

The punishment – an assault on precisely that which it is one of the main purposes of Art. 3 to protect, namely a person’s dignity and physical integrity; also: adverse psychological effects

An interval of several weeks since the applicant’s conviction and a delay in the police station: in addition to the physical pain, Mr Tyrer subjected to mental anguish of anticipating the violence inflicted

Conclusion

Applicant was subjected to a punishment in which the element of humiliation attained the level inherent in the notion of ‘degrading punishment’