Law Report: 'Slippering' pupil is not degrading punishment: Costello-Roberts v The United Kingdom. European Court of Human Rights, Strasbourg, 25 March 1993

Corporal punishment consisting of three whacks with a rubber-soled gym shoe on the bottom of a seven-year-old boy by the headteacher of an independent private school was not severe enough to constitute 'degrading punishment' which violated article 3 of the European Convention on Human Rights, even though it was imposed automatically as part of the school's disciplinary system, the boy had been at the school for only five weeks, and the punishment was administered three days after the boy was told he would be corporally punished.

The ECHR held by, five votes to four, that the particular corporal punishment inflicted on the applicant, Jeremy Costello-Roberts, had not given rise to a violation of article 3 (freedom from degrading punishment). It held unanimously that there had been no violation of articles 8 (right to respect for private life) and 13 (right to an effective remedy).

In September 1985, Jeremy, then aged 7, was sent to an independent boarding preparatory school in Barnstaple, Devon. The school's prospectus did not state that corporal punishment was used to maintain discipline. His mother did not make known her opposition to corporal punishment. The school operated a system whereby corporal punishment was administered on acquisition of five demerit marks.

On 3 October, Jeremy was reprimanded for talking in the corridor and received his fifth demerit mark. The other marks were for similar conduct and for being a little late to bed once. The headmaster, having discussed the matter with his colleagues, decided that the applicant should be corporally punished and informed Jeremy on 8 October.

Three days later, eight days after Jeremy had received his fifth demerit mark, the headmaster administered a 'slippering', hitting Jeremy three times on his bottom, through his shorts, with a rubber-soled gym shoe. No other persons were present.

THE MAJORITY JUDGMENT OF THE ECHR said that in English law there were various criminal offences of assault and if no criminal prosecution had been brought for common assault, physical assault was actionable under the civil law as trespass to the person.

Subject to the Education (No 2) Act 1986 the law governing the administration of corporal punishment by school teachers was based on the right of parents to use physical punishment on their children. Both parents and teachers were protected by the law only when the punishment in a particular case was 'reasonable' in the circumstances. The concept of 'reasonableness' permitted the courts to apply standards prevailing in contemporary society with regard to the physical punishment of children.

When the Education (No 2) Act 1986 came into force on 15 August 1987, that defence ceased to be available to a teacher in civil proceedings in respect of pupils at schools maintained or assisted by local education authorities or public funds. Independent schools remained free to use corporal punishment as a disciplinary measure.

Jeremy claimed that the corporal punishment inflicted on him constituted 'degrading punishment', contrary to article 3, relying on his age, the fact he had been at the school for only five weeks, the humiliating site of the punishment, the impersonal and automatic way in which it had been administered, and the three-day wait for its implementation.

Corporal punishment might constitute an assault on a person's dignity and physical integrity, but in order for it to be 'degrading', the humiliation or debasement involved must attain a particular level of severity and must be other than that usual element of humiliation inherent in any punishment. Article 3, by expressly prohibiting 'inhuman' and 'degrading' punishment, implied that there was a distinction between such punishment and punishment generally.

The assessment of that minimum level of severity depended on all the circumstances of the case. Factors such as the nature and context of the punishment, the manner and method of its execution, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim must be taken into account.

Beyond the consequences to be expected from measures taken on a purely disciplinary plan, the applicant had adduced no evidence of any severe or long-lasting effects as a result of the treatment complained of. A punishment which did not occasion such effects might fall within article 3, provided that it might be said to have reached the minimum threshold of severity required.

While the court had certain misgivings about the automatic nature of the punishment and the three-day wait before its imposition, it considered that minimum level of severity not to have been attained in this case.

Jeremy also alleged that his corporal punishment had given rise to a breach of article 8, the right to respect for his private life. The notion of 'private life' was a broad one which was not susceptible to exhaustive definition. Measures taken in the field of education might, in certain circumstances, affect the right to respect for private life, but not every act or measure adversely affecting the physical or moral integrity of a person necessarily gave rise to such an interference.

The particular disciplinary measure did not attain a level of severity to bring it within article 3 which provided the first point of reference for examining a case concerning disciplinary measures in a school. It was possible that article 8 could afford a protection beyond that given in article 3.

However, having regard to the purpose and aim of the Convention as a whole, and bearing in mind that sending a child to school necessarily involved some degree of interference with his or her private life, the court considered that the treatment complained of did not entail adverse effects for Jeremy's physical or moral integrity sufficient to bring it within the scope of article 8.

While not wishing to be taken to approve in any way the retention of corporal punishment as part of the disciplinary regime of a school, the court concluded that in the circumstances there had been no violation of article 8.

Jeremy further alleged that he had no effective remedy as required by article 13. However, it was open to him to institute civil proceedings for assault and the English courts would have been in a position to grant him appropriate relief. The effectiveness of a remedy did not depend on the certainly of a favourable outcome and, in any event, it was not for the court to speculate as to what decision the English courts would have reached.

THE OPINION OF THE FOUR JUDGES, dissenting on article 3, said that the ritualised character of the corporal punishment was striking. After a three-day gap the headmaster 'whacked' a lonely and insecure seven-year-old boy. A spanking on the spur of the moment might have been permissible, but the official and formalised nature of the punishment meted out, without adequate consent of the mother, was degrading to Jeremy and violated article 3.