1. Tyrercase Summary

2. Facts of the case • AnthonyTyrer, residentinCastletown, IsleofMan, aged 15, pleadedguiltybeforethelocaljuvenile court to unlawfulassaultoccasioningactualbodilyharmto a senior pupil at his school • Sentenced to threestrokesofthebirch • Appealedagainst sentence to theHigh Court ofJusticeoftheIsleofMan • Appealdismissed: unprovokedassaultoccasioningactualbodilyharm – veryserious; no reason to interferewiththe sentence

3. 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)

4. ‘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’

5. ‘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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. Proceedings before the Commission • BreachofArticle 3 • Destructiveoffamilywell-beingandcontrary to Article 8 • No remedies to rectifytheviolation, inconsistentwithArticle 13 • DiscriminatorywithinthemeaningofArticle 14 • ViolationofArticle 1 • Discrimination on groundsofsex/age contrary to Aricle 14 • Admissible: Aricle 3

15. 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’

16. 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’

17. 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

18. 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

19. Degrading punishment • Convention – a living instrument and should be interpreted in the light of present-day conditions

20. 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

21. 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

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