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A v UK (1999) 27 EHRR 611 European Court of Human Rights

The applicant was examined by a consultant paediatrician, who found the following marks on his body:
(1) a fresh red linear bruise on the back of the right thigh, consistent with a blow from a garden cane, probably within the preceding twenty-four hours; 
(2) a double linear bruise on the back of the left calf, consistent with two separate blows given some time before the first injury; 
(3) two lines on the back of the left thigh, probably caused by two blows inflicted one or two days previously; 
(4) three linear bruises on the right bottom, consistent with three blows, possibly given at different times and up to one week old; 
(5) a fading linear bruise, probably several days old. 

The paediatrician considered that the bruising was consistent with the use of a garden cane applied with considerable force on more than one occasion. The applicant's step-father was charged under s.47 Offences Against the Person Act 1861for an assault occasioning actual bodily harm. He raised the defence of lawful chastisement and the jury acquitted him. The applicant took his case to the European Court of Human Rights contending that English law relating to lawful chastisement failed to protect him and that it was in breach of Art 3 of the European Convention of Human Rights which provides, "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

Held:


The level of force used was sufficient to be within the scope of Art 3. The failure to provide adequate protection did constitute a violation of Article 3.

The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental ...Children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity.... The Court recalls that the applicant, who was then nine years old, was found by the consultant paediatrician who examined him to have been beaten with a garden cane which had been applied with considerable force on more than one occasion. 

The Court recalls that under English law it is a defence to a charge of assault on a child that the treatment in question amounted to "reasonable chastisement" (see paragraph 14 above). The burden of proof is on the prosecution to establish beyond reasonable doubt that the assault went beyond the limits of lawful punishment. In the present case, despite the fact that the applicant had been subjected to treatment of sufficient severity to fall within the scope of Article 3, the jury acquitted his stepfather, who had administered the treatment (see paragraphs 10–11 above). 

In the Court's view, the law did not provide adequate protection to the applicant against treatment or punishment contrary to Article 3. Indeed, the Government have accepted that this law currently fails to provide adequate protection to children and should be amended. 

In the circumstances of the present case, the failure to provide adequate protection constitutes a violation of Article 3 of the Convention.
 
 
Back to lecture outline on S.47 ABH
Back to lecture outline on wounding and GBH
Back to lecture outline on the defence of consent