SEPARATE OPINION OF JUDGE SIR GERALD FITZMAURICE

1. To my regret, I feel obliged to dissent from the view taken by the Court on what is the main issue in this case, namely whether the punishment inflicted on Mr. Tyrer - he being then a schoolboy - amounted to a "degrading" punishment contrary to Article 3 (art. 3) of the European Human Rights Convention. However, I can at least address myself exclusively to that matter since, while not necessarily agreeing in toto on every other question - in particular that of paragraph 3 of Article 63 (art. 63-3) (due regard to be paid to local requirements in the case of non-metropolitan territories) – I did not feel called upon actually to vote against the conclusions reached by the Court on points not directly arising on Article 3 (art. 3). Moreover, in view of the fact that the Court has found (correctly in my opinion) that Mr. Tyrer ’ s punishment did not amount either to torture or to inhuman treatment, I need not deal with those matters except in so far as, in a general way, they are relevant to what I want to say on the third component of Article 3 (art. 3) - degrading treatment or punishment. The more specific aspects of torture and inhuman treatment I considered in some detail in the recent case of Ireland v. the United Kingdom (Judgment of 18 January 1978), which I shall hereafter refer to as the "Irish case".

2. Before I go any further, however, I want to make it clear that my attitude to the present case is governed by the fact that the punishment complained of was administered to a juvenile. Just as in the recent Handyside (" Little Red Schoolbook") case [1] the key element involved was that sex literature which would have been more or less innocuous if disseminated amongst adults was specifically intended for and circulated to juveniles of school age, - so in my view does the key to the present case lie in the infliction of the punishment - not on an adult, but on a juvenile.

3. As regards torture and inhuman treatment, further reflection on the Irish case has led me to doubt whether it is either practicable or right to regard these notions - (and the same would apply to those of degrading treatment or punishment) - as having the absolute and monolithic character which, on a literal reading of Article 3 (art. 3), they appear to have - as the Court has held in both the Irish and the present case, and as I admitted in paragraph 14 of my Separate Opinion in the former case. As I there stated, it is easy to see why those who drew up the Convention proceeded in this manner: not only would an appropriate definition have been as difficult to frame as in the celebrated case of the definition of aggression, but also any attempted definition (as equally in the latter case) would almost inevitably have tended to suggest the means for its own evasion. But this in no way denotes that because the function of interpreting and applying these notions is, in consequence, perforce left to judicial determination, the tribunal invested with that function can take refuge in a literal interpretation of the words of the Article without regard to the special circumstances of the concrete case. Indeed it is precisely because of the difficulty of arriving at any definition that will take account in advance of all the possibilities which may occur, that the obligation to do so in the particular case falls upon the tribunal. This the Court has recognised up to a point by applying the test of the degree of severity that the impugned treatment involves; but that is far from being the only factor that may be relevant, and even in applying that test, the tribunal must consider such aspects as the age, general health, bodily characteristics and current physical and mental condition of the person concerned, or other actual features of the case, any one of which may either increase or diminish the intensity of the effect produced.

4. Nor is it only under these heads that some gloss has to be put upon the absolute character of the literal terms of Article 3 (art. 3). Thus it is to be noted that these, in speaking of "punishment", do so only in connection with the expressions "inhuman" and "degrading", not in connection with "torture". Apart from the grammatical difficulties of using the latter term as an adjective, the reason clearly is that torture is as often, if not more often, inflicted for other purposes - such as intimidation, compulsion, extraction of information, etc. - as for purposes of punishment - (in the case of the inhuman or the degrading these other purposes are met by the use of the word "treatment" as well as "punishment", but neither term is employed in connection with the expression "torture"). Hence, if Article 3 (art. 3) is interpreted literally, any infliction of pain severe enough in degree to amount to torture would involve a breach of that provision whatever the circumstances in which it had occurred, - for instance, the case of an army surgeon who amputates a leg on the battlefield under emergency conditions and without an anaesthetic. In all such cases (and others can easily be thought of - see footnote 2 [2] , the "victim" is, according to the ipsissima verba of Article 3 (art. 3), "subjected to torture" which the Article states that "No one may be" - ever, even if in certain instances, or up to a point, the subjection is voluntarily accepted.

5. Cases of this kind also show that the gloss that has to be placed upon the literal effect of the Article relates not only to what constitutes or amounts to torture, etc., but to what may in certain circumstances justify its infliction, such as encompassing the greater good of saving the life of the recipient; - or, in certain types of cases, the saving of a great many other lives. This last matter is one of much difficulty and delicacy on which it is all too easy to go wrong. I touched upon it in the third paragraph of footnote 19 in my Separate Opinion in the Irish case (see paragraph 1 supra), and will not enlarge upon it here since questions of torture or other kinds of inhuman treatment are not directly involved in the present case - (or at any rate the Judgment of the Court, with which I agree on these points, excludes them).

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6. What is at present involved is the question of degrading treatment or punishment, the principle of which I considered in some detail in paragraphs 27-29 of my Separate Opinion in the Irish case. But here too it is obviously not possible to apply the language of Article 3 (art. 3) literally. If, as now, the case is one of punishment, it is obvious that all punishment is degrading, at least if it involves imprisonment and the (mostly unpleasant and often humiliating) incidents of prison life and discipline. To amount to an infringement of Article 3 (art. 3) therefore, the punishment in question must entail a degree of degradation recognisably greater than that inherently bound-up with any normal punishment that takes the form of coercion or deprivation of liberty, - or else it must be accompanied by circumstances of degradation greater than what are necessary for the carrying-out of the punishment according to its due and intended effect. This has been expressly recognised by the Court in the passage figuring at the last section of paragraph 30 of the Judgment, which contains a statement of the relevant principle - one in which I fully concur.

7. The Court, however, then goes on to hold that what the passage I have just referred to calls the "level" of "humiliation or debasement involved" was in fact attained in the punishment inflicted on Mr. Tyrer when he was a boy, - and it is this conclusion with which I respectfully disagree - in part because, as I shall show presently, it is not in fact - (though it purports to be) - related to the actual circumstances of the punishment, but amounts to a finding that all corporal punishment, in all circumstances, inherently involves, as such, an unacceptable level of degradation. In this the Court seems to me to depart from its own criterion, stated in the passage concerned to be that the assessment of the element of degradation is "relative" and "depends on all the circumstances of the case, and in particular the nature and context of the punishment itself and the manner and method of its execution". After drawing attention to the fact (though it does not consider it conclusive) that the punishment was administered in private, the Judgment next proceeds, if I have understood it correctly, to concede, in effect, that (subject to the basic question of the whole nature of corporal punishment) the methods and requirements prescribed by Isle of Man law for carrying-out such a punishment did provide for "certain safeguards", - and it is evident from the facts of the case that these safeguards were duly adhered to in the Tyrer case. The passages in question in the Judgment (last section of paragraph 32 and first of paragraph 33) read as follows: -

"The Court notes that the relevant Isle of Man legislation, as well as giving the offender a right to appeal against [the] 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."

The Judgment continues (paragraph 33):

"Nevertheless, the Court must consider whether the other circumstances of the applicant ’ s punishment were such as to make it ‘ degrading ’ within the mea ning of Article 3 (art. 3)." [3]

8. The "Nevertheless" at the start of this last passage shows that the Court considered the circumstances of the administering of the punishment as not in themselves calling for criticism, and had to look at "the other circumstances of the ... punishment" to see whether it was "degrading". But when the Judgment goes on to do that, it becomes perfectly plain that, for all practical purposes, it is not "the other circumstances of the punishment" at all, but the punishment itself, and as such, that the Court regards as degrading. This appears, but appears sufficiently, from only two sentences in the second section of paragraph 33, reading respectively:

"The very nature of judicial corporal punishment is that it involves one human being inflicting physical violence on another human being."

and

"... 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."

These are tautologies that do not advance matter s [4] and defeat their own ends, since they beg the question at issue, which is not whether the punishment was physically violent or was inflicted compulsorily, or even involved loss of dignity (as most punishment does), but was in the actual circumstances "degrading", and degrading to a degree which - to use the Court ’ s own language - took it to a level above that "usual ... element of humiliation or degradation" which is an "almost inevitable element" of "judicial punishment generally" - (Judgment, paragraph 30, passim). It is only this kind of degradation of which it can properly be said to be "one of the main purposes of Article 3 (art. 3)" to condemn - or protect against - and mere affirmations that such is the case cannot of themselves carry conviction. What they do show is that, in the opinion of the Court, it is the fact of the punishment being corporal which makes it peccant, - and this is irrespective of such an obviously relev ant circumstance as that it was administered to a juvenile not an adult. In short, it is the "corporality" of the punishment which is regarded as automatically causing it to stand at an unacceptable level of the degrading. I am unable to agree with this view of the matter which, for reasons of somewhat the same order as those that I gave in the Irish case (particularly in my paragraphs 22-36), seems to be exaggerated and out of proportion. But before I indicate more specifically my grounds for not regarding the punishment administered in the present case as amounting in the circumstances to a "degrading" one - or at the least as not involving the level of degradation necessary to constitute a breach of Article 3 (art. 3) - I must consider what were the "other" circumstances which the Court seems to have had in mind in the last of the passages I have quoted in paragraph 7 above.

9. The "other" circumstances (Judg ment, paragraph 33 et seq.) – I have noted the following:

(i) In paragraph 33, much stress is placed on the fact that the "violence" was "institutionalised", i.e. "permit ted by law" [5] and "carried out by the police authorities". For my part, I cannot see the relevance of this criterion, i.e. that the punishment was degrading because "institutionalised", or more degrading on that account that if it had not been. 5a To be "institutionalised" is, in an ordered society, inseparable from any punishment for crime, since non-institutionalised punishment, except such as the law tolerates, must be illegal. Therefore I do not follow (and it is not explained) why institutionalised violence must necessarily be degrading, if non-institutionalised is not, or be more degrading than the latter. Indeed, it is not at all clear what form of non-institutionalised violence the Court had in mind which, by comparison, would not be regarded as degrading to the recipient. Possibly it was desired to imply (though this is not stated) that, for instance, a beating administered by a parent to a child would not degrade the latter, - whereas a "judicial" one would. I do not believe in these subtleties. In my view neither punishment (so long as administered in private) can be considered as inherently degrading where a juvenile is concerned, unless other factors over and above the beating as such are involved. The State is, in a certain sense, in loco parentis in such a situation.

(ii) Next (third section of paragraph 33), the alleged effect of the institutionalisation is said to be "compounded" by "the whole aura of official procedure attending the punishment" - (but how could the procedure not be official if there was institutionalisation? - the one is, or entails, the other) - and also compounded "by the fact that those inflicting [the punishment] were total strangers to the offender". As to this last objection, leaving aside the question whether, in the restricted community of Castletown, Isle of Man , the police officers concerned were "total strangers" to the boy, I for my part fail to see how it can be any more degrading to be beaten by strangers than non-strangers. Many would, I believe, think it less so. [6]

(iii) Then - a further "other" circums tance - it is stated at the end of the second section of paragraph 33, as something not to be "excluded", that "the punishment may have had adverse psychological effects". This seems to be pure surmise, as I have not been able to discover any evidence of it whatever. But in any case it would be totally irrelevant to the question of the alleged degrading nature of the punishment. It is a point that could go only to the question of inhumanity. If psychological effects could be established, and if these were appreciable and more than merely temporary, there might be a case for calling the punishment "inhuman", but none of this would have the slightest bearing on the question of degradation or debasement.

(iv) Exactly the same consid erations apply (last section of paragraph 33) to the circumstance that there was rather a long period of delay in carrying out the punishment, after the original passing of sentence. Most of this delay was due to the fact that there was an appeal against the sentence which was not finally heard for some five weeks. However, the Judgment says that

"Accordingly, in addition to th e physical pain he experienced, Mr. Tyrer was subjected to the mental anguish of anticipating the violence he was to have inflicted on him."

During the period when the appeal wa s still outstanding, therefore, any mental anguish caused by the delay resulted from Mr. Tyrer ’ s own act, and probably would have been more than compensated for by the hope that the appeal would succeed. Hence, this pronouncement on the part of the Court could in any case only apply in respect of the period of a few hours that elapsed between the dismissal of the appeal in the morning, and the carrying-out of the sentence the same afternoon - a loss of time due exclusively to delays in securing the presence of a doctor, - a requirement entirely in the boy ’ s own interests. But be these matters as they may, the whole question of delay, whatever the cause, is one that could go only to the issue of inhumanity. To have to undergo a prolonged wait for a sentence of this kind to be carried out may well cause mental anguish and, if this was deliberately caused - (but evidently in the present case it was not) - might constitute inhuman treatment, - but it clearly has no bearing whatever on the question of the degrading character or otherwise of the punishment itself.

(v) Finally, in respect of "oth er" circumstances, the Judgment (paragraph 35) adverts to the fact that the punishment was administered on the bare posterior instead of over the boy ’ s ordinary clothing. That this was permitted by Isle of Man law in the case of a juvenile of his age does not of course alter its relevance to the question of whether the punishment, as actually carried out, was degrading or not. However, what the Judgment states about it is

"The indignity of having the punish ment administered over the bare posterior aggravated to some extent [its] degrading character ... but it was not the only or determining factor."

Clearly therefore the Court regard ed this circumstance only as an aggravating one, and this only to "some extent", and not as determining. It follows that the Court would have found the punishment to be degrading even if this particular element had been otherwise.

10. This brings me back to th e conclusion I had suggested in paragraph 8 above - and which constitutes one of the basic causes of my dissent over the Judgment - namely that it is the fact of corporal punishment as such, irrespective of the circumstances, which, in the Court ’ s view, is degrading, - so that no circumstances could make it otherwise. Those cited in the Judgment turn out, when analysed, to fall into one of three categories: either (institutionalisation, presence of strangers, etc.) their existence causes no more degradation, if any, than would result from their absence; or else, though possibly relevant to the question of inhuman treatment, they have no bearing on that of degradation; or finally, they are merely aggravating and not determinant.

11. I must now state why I cann ot accept the view which I have described in the preceding paragraph above. Modern opinion has come to regard corporal punishment as an undesirable form of punishment; and this, whatever the age of the offender. But the fact that a certain form of punishment is an undesirable form of punishment does not automatically turn it into a degrading one. A punishment may well have an undesirable character without being in the least degrading - or at any rate not more so than punishment in general is. And hitherto, whatever may have been felt about corporal punishment from such standpoints as whether it really deters, whether it may not have a brutalising effect, whether it harms the psyche of those who carry it out, etc., it has not been generally regarded as degrading when applied to juveniles and young offenders, in the same way as it is considered so to be in the case of adults. In that respect, the two things have never been regarded as being quite of the same ord er [7] , or as being on the same plane. This last is the real point, - for to put it in terms of the criterion adopted by the Court, and assuming that corporal punishment does involve some degree of degradation, it has never been seen as doing so for a juvenile to anything approaching the same mann er or extent as for an adult [8] . Put in terms of the Convention and of the Court ’ s criterion, therefore, such punishment does not, in the case of a juvenile, attain the level of degradation needed to constitute it a breach of Article 3 (art. 3), unless of course seriously aggravating circumstances are present over and above the simple fact of the corporal character of the punishment. This is why I could have understood it if the Court had regarded the infliction of the blows on the bare posterior as bringing matters up to the required level of degradation. I would not necessarily have agreed with that view, but it would have been tenable. However, the Court held that this was not a determining element: the punishment was in any event degrading. This means, in effect, that any judicial corporal punishment meted out to a juvenile is degrading and a breach of Article 3 (art. 3). It is this view (in my opinion far too dogmatic and sweeping) that I cannot agree with. That such punishments may be undesirable and ought perhaps to be abolished is, as I have said, quite another matter: they are not ipso facto degrading on that account in the case of juvenile offenders.

12. I have to admit that my own view m ay be coloured by the fact that I was brought up and educated under a system according to which the corporal punishment of schoolboys (sometimes at the hands of the senior ones - prefects or monitors - sometimes by masters) was regarded as the normal sanction for serious misbehaviour, and even sometimes for what was much less serious. Generally speaking, and subject to circumstances, it was often considered by the boy himself as preferable to probable alternative punishments such as being kept in on a fine summer ’ s evening to copy out 500 lines or learn several pages of Shakespeare or Virgil by heart, or be denied leave of absence on a holiday occasion. Moreover, these beatings were carried out without any of the safeguards attendant on Mr. Tyrer ’ s: no parents, nurses or doctors were ever present. They also not infrequently took place under conditions of far greater intrinsic humiliation than in his case. Yet I cannot remember that any boy felt degraded or debased. Such an idea would have been thought rather ridiculous. The system was the same for all until the y attained a certain seniority. If a boy minded, and resolved not to repeat the offence that had resulted in a beating, this was simply because it had hurt, not because he felt degraded by it or was so regarded by his fellows: indeed, such is the natural perversity of the young of the human species that these occasions were often seen as matters of pride and congratulation, - not unlike the way in which members of the student corps in the old German universities regarded their duelling scars as honourable - (though of course that was, in other respects, quite a different case).

13. In conclusion, I must insist th at I am not seeking to maintain that the state of affairs I have just described was necessarily a good one, though it had, and has, many supporters. I am not advocating corporal punishment. I am simply saying that it is not degrading for juvenile offenders - or (to such extent as it is), does not, in their case, involve the level of degradation required to constitute it a breach of Article 3 (art. 3) of the European Human Rights Convention, when inflicted under proper restrictions and safeguards in consequence of a regularly pronounced judicial sentence, traditionally sanctioned for certain offences by the law of the community to which the offender belongs, and by its public opinion. No juvenile is or need feel "degraded" under those conditions.

14. Finally, I would like to advert to the remarks I made in paragraphs 15 and 16 of my Separate Opinion in the Irish case (see paragraph 1 supra) which, mutatis mutandis, are equally applicable to the question of degrading treatment or punishment. The fact that a certain practice is felt to be distasteful, undesirable, or morally wrong and such as ought not to be allowed to continue is not a sufficient ground in itself for holding it to be contrary to Article 3 (art. 3). Still less is the fact that the Article fails to provide against types of treatment or punishment which, though they may legitimately be disapproved of, cannot, considered objectively and in relation to all the circumstances involved, reasonably be regarded without exaggeration as amounting, in the particular case, to any of the specific forms of treatment or punishment which the Article does provide against. Any other view would mean using the Article as a vehicle of indirect penal reform, for which it was not intended.

[1] Judgment of 7 December 1976 .

[2] For example:

the member of a rescue party who has to inflict agonising pain in order to release a trapped limb;

the monk who endures severe flagellation at the hands of his superiors as a reigious or claustral penance or discipline;

the infliction of severe mental torture by the withholding of news the premature communication of which might be prejudicial to success;

the dentist who cannot give a pain-killing injection because of the patient's allergy to it.

[3] "... within the meaning of Article 3 (art. 3)".  I drew attention in paragraph 12 of my Separate Opinion in the Irish case to the fact that since Article 3 (art. 3) of the Convention does not define or explain in any way the terms it contains ("torture or ... inhuman or degrading treatment or punishment"), an expression such as "within the meaning of Article 3 (art. 3)" lacks all significance, as the Article ascribes no meaning to these terms.  Any meaning to be given to them must come from outside.  In these circumstances, it is the Court itself that has to impart a meaning.  This is perfectly acceptable – indeed inevitable.  But then it should not be implied that the meaning thus imparted is to be found in Article 3 (art. 3) itself, for it is not.  A more correct description would be "contrary to" or "according to the presumed intention of" Article 3 (art. 3).

[4] Perhaps "truisms" would be a more acc urate description, - for surely any prisoner is, by definition, "in the power" of the authorities, - while it goes without saying that judicial corporal punishment involves the infliction of physical violence by one person on another: even science fiction has not yet pictured a world in which it is inflicted by machines.  Again, it goes without saying that if a thug attacks someone in a dark passage, there is certainly "an assault on" the victim's "physical integrity", and this may lower his dignity; but is he necessarily "degraded" or "deba sed" thereby?  Clearly the mere fact of an assault, to which the victim is subjected unwillingly, cannot in and of itself suffice.

[5] / 5a Clearly th e Court could not have meant to imply that the punishment would have been in order if not permitted by law!  But it probably did mean to imply that, whereas it thought all judicial corporal punishments were degrading, there might be some non-judicial ones (e.g. parent to child) that were not.

[6] Here again, the contrast the C ourt is perhaps seeking to make (though it is not stated) is between a beating that takes place within the family and one that is administered outside it.  This is purely speculative.  Many boys would mind the one as much as, or more than, the other.

[7] It is really not too much to say that throughout the ages and under all skies, corporal methods have been seen as the obvious and natural way of dealing with juvenile misbehaviour.

[8] Perhaps only a psychol ogist could explain this, - but it seems to be an extension of the attitude that does not consider young persons as susceptible of offence in the same manner or degree as adults, so that a measure of freedom of speech or action is felt to be permissible in the one case that would not be in the other.  People would not call a grown man "Sonny" or pat him on the head as they would a child or youth, and without causing any resentment.  Most people indeed would regard it as rather an absurd notion that even more serious inroads than these on "dignity" and "physical integrity" could, in the case of a juvenile, be thought of as degrading.