Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12937/87

by Maureen and Duncan AMPLEFORD

against the United Kingdom

The European Commission of Human Rights sitting in private on

8 September 1988, the following members being present:

MM. C.A. NØRGAARD, President

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. J. RAYMOND, Deputy Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 14 July 1986

by by Maureen and Duncan AMPLEFORD against the United Kingdom and

registered on 30 April 1987 under file No. 12937/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicants, United Kingdom citizens, are a mother and son

living in London. They are represented before the Commission by

Messrs. Binks Stern and Partners, solicitors of London. The facts of

their case, as submitted by their representatives, may be summarised

as follows:

The second applicant was born on 14 April 1975. At the

relevant time, he attended, as a boarder, an independent school in

Sussex.

On 2 October 1985 at about 7:30 p.m. the second applicant was

sitting with other boys doing homework in a classroom. He was crying

because he was homesick. The headmaster entered the room and walked

over to the second applicant's desk and shouted at him, "Shut up, shut

up". The headmaster took hold of the boy's shirt collar and pulled

him over the desk and hit him on the bottom through his shorts with

his bare hands. The headmaster then returned him to his seat and

shouted at him again, "Shut up, shut up". He then hit the second

applicant over the head with the exercise book he was working from.

The headmaster sat in the room a further five minutes watching and

then left.

On 5 October 1985 the second applicant was sitting with two

other boys watching television when the headmaster walked in and said

to him in a soft voice, "Come here". He followed the headmaster to

the headmaster's bedroom. Once they had both entered, the headmaster

shut the door and locked it with a bolt. He then accused the second

applicant of copying from another boy's Latin book, which he denied.

The headmaster then said to him, "You know what's going to happen to

you, don't you?" He replied, "Yes, sir", anticipating a beating.

The headmaster took down the second applicant's shorts and

underpants and put him across his knee and hit him six times on his

bare bottom with his bare hand. The other hand was placed on his

back. Afterwards the second applicant was crying and the headmaster

said to him, "It serves you right". The second applicant pulled up his

underpants and shorts and the headmaster sat him on his knee and for

several minutes rubbed his bottom and cuddled him. There was a knock

at the door and the headmaster opened it and spoke to two older boys

for a few minutes. After they had gone he told the second applicant,

"Forget about it; forget about it".

The second applicant left the room and later showered. Three

friends noticed the red marks on his bottom; the marks stayed for

nearly a week.

Within a few days after the beating the second applicant wrote

to the first applicant asking her to take him away from school. The

boy was removed from the school a few weeks later, apparently by the

end of the school term in December.

On 12 December 1985 the second applicant made a statement to

the police and there was a subsequent police investigation involving

the interview of a number of pupils at the school. The applicants

wrote to the Commission on 14 July 1986 stating that they intended to

lodge an application with the Commission in respect of the corporal

punishment inflicted on the second applicant. They stated they would

do this as soon as the police confirmed that they would not be

charging the headmaster with any offence in relation to the second

applicant. Charges were brought by the police against the headmaster

for assault but none of these charges related to any incident

involving the second applicant. The Sussex Police wrote to the

applicants on 24 June 1986 stating that on or about 30 April 1986 the

Chief Prosecution Solicitor had decided not to proceed with charges in

connection with the boy's beating. However the police stated in this

letter as follows:

" ... our Counsel may wish to make use of the evidence which

we accrued in relation to when

presenting the case at Crown Court and indeed he may make

a decision to add further counts to the indictment. You

will, therefore, appreciate that we cannot say that no

prosecution or action is being brought against

headmaster> concerning until after

the final hearing when he is dealt with at Chichester

Crown Court."

The Headmaster's trial ended on 20 November 1986 when he was

convicted on two counts of assault, neither of which related to the

second applicant. He was apparently sentenced to three months'

imprisonment.

COMPLAINTS

1. The applicants allege a violation of Article 3 of the

Convention in respect of the punishment of the second applicant. They

quote, inter alia, the cases of Campbell and Cosans (Eur. Court H.R.,

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

p. para. 26), in which the Court observed that "provided it is

sufficiently real and immediate, a mere threat of conduct prohibited

by Article 3 may itself be in conflict with that provision". They

also cite the Tyrer case (Eur. Court H.R., Tyrer judgment of 25 April

1978, Series A no. 26, p. paras. 32 and 33), referring to the

apparent similarities of that case with the present application,

namely, the humiliation involved, the lack of medical safeguards, the

institutional character and the "aura of official procedure", the

emotional and psychological effects and the assault on both the

dignity and physical integrity of the victim.

The applicants contend that the respondent Government are

responsible for acts which violate the Convention when they occur not

only in State schools but also in independent schools as well.

They quote, inter alia, the Commission's Report in the Swedish

Engine Drivers' Union case (Comm. Report 27.5.74, Eur. Court H.R.,

Series B no 18, p. 41 para. 62), in which the Commission observed that

a State may "be obliged to protect individuals through appropriate

measures taken against some forms of interference by other

individuals, groups or organisations".

Moreover, the applicants contend that independent schooling is

regulated by statute and the respondent Government ultimately have the

power to permit or prevent the operation of an independent school

through the registration process, and that this amounts to a broad

spectrum of legal, practical and moral responsibility for independent

schooling which cannot exclude the use of corporal punishment where it

allegedly violates the Convention.

2. A violation of Article 8 of the Convention is alleged in

respect of the first applicant ("family life") and the second

applicant ("private and family life").

3. The applicants also allege that they had no effective remedy,

contrary to Article 13 of the Convention.

4. Finally they complain that as of the date of implementation of

the Education (No. 2) Act 1986, sections 47 and 48, on 15 August 1987,

children in independent schools will be afforded less protection than

their fellow school pupils in State schools against corporal

punishment, and that this difference in treatment amounts to

discrimination contrary to Article 14 of the Convention.

5. With regard to Article 26 of the Convention, the applicants'

representatives draw the Commission's attention to the applicants'

letter dated 14 July 1986 in which the applicants stated that they

would be lodging an application once it was known categorically

whether or not the headmaster would be charged by the police with any

offence in relation to the second applicant. The applicants submit

that the date for the purposes of Article 26 should be 20 November

1986, the date on which the trial of the headmaster, in relation to

other charges, ended. If this date is not accepted, the applicants

contend that the relevant date should be 24 June 1986, the date when

the police decision not to bring charges in relation to the boy's

beatings was communicated to the applicants. Whichever date is chosen,

the applicants contend that their letter of 14 July 1986 to the

Commission was within six months of the final decision.

THE LAW

The applicants have complained that the corporal punishment of

the second applicant at an independent school on 5 October 1985

constituted degrading treatment, contrary to Article 3 (Art. 3) of the

Convention, a violation of their right to respect for family life

ensured by Article 8 (Art. 8) of the Convention, and discrimination

contrary to Article 14 (Art. 14) of the Convention, for which

complaints they had no effective domestic remedies, contrary to

Article 13 (Art. 13) of the Convention.

However, the Commission is not required to decide whether or

not the facts alleged by the applicants disclose any appearance of a

violation of these provisions as Article 26 (Art. 26) of the

Convention provides that the Commission "may only deal with the matter

after all domestic remedies have been exhausted, according to the

generally recognised rules of international law, and within a period

of six months from the date on which the final decision was taken".

English law provides a civil court remedy for assault. Given the

seriousness of the headmaster's conduct in the present case it would

appear that such a remedy might have proved successful, with

compensation being awarded to the applicants. The Commission

considers, therefore, that the case could be rejected for

non-exhaustion of domestic remedies. However, the applicants have

claimed that it would have been ineffective (cf. No. 7907/77 Mrs. X

v. the United Kingdom, Dec. 12.7.78, D.R. 14 p. 205 at p. 210). In

that case, assuming that the applicants' contention is correct, the

final decision for the purposes of the aforementioned six months' rule

is the date of the incident about which complaint is made (cf. No.

5759/72, Dec. 20.5.76, D.R. 6 p. 15). Accordingly, in the present

case the six month period runs from the date of the punishment of the

second applicant, namely 5 October 1985, or, if allowance is made for

his young age at the material time, a few days later, when apparently

the first applicant received the second applicant's letter of

complaint about the incident. Moreover once the second applicant was

withdrawn from the school before the end of December 1985 he risked no

further punishment of this kind. However, the application was lodged

with the Commission on 14 July 1986, more than six months after any of

these dates. The Commission concludes, therefore, that the

application must be rejected for non-observance of the six months'

rule, pursuant to Articles 26 and 27 para. 3 (Art. 26, 27-3) of the

Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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AMPLEFORD v. the UNTED KINGDOM

AMPLEFORD v. the UNTED KINGDOM