CASE OF CAMPBELL AND COSANS v. THE UNITED KINGDOM
Violation of P1-2;No violation of Art. 3;Just satisfaction reserved
8. Both Mrs. Campbell and Mrs. Cosans live in Scotland. Each of them had one child of compulsory school age at the time when she applied to the Commission. The applicants' complaints concern the use of corporal punishment as a disciplinary measure in the State schools in Scotland attended by their children. For both financial and pratical reasons, the applicants had no realistic and acceptable alternative to sending their children to State schools. 9. At the time of Mrs. Campbell's application to the Commission (30 March 1976), her son Gordon, who was born on 3 July 1969, was attending St. Matthew's Roman Catholic Primary School in Bishopbriggs which is situated in the Strathclyde Region Education Authority area. In that school, corporal punishment is used for disciplinary purposes, although it was disputed before the Commission and the Court whether it is applied to pupils below the age of 8. The Strathclyde Regional Council had refused Mrs. Campbell's requests for a guarantee that Gordon would not be subjected to this measure. He was, in fact, never so punished whilst at that school, where he remained until July 1979. 10. Mrs. Cosans' son Jeffrey, who was born on 31 May 1961, used to attend Beath Senior High School in Cowdenbeath which is situated in the Fife Region Education Authority area. On 23 September 1976, he was told to report to the Assistant Headmaster on the following day to receive corporal punishment for having tried to take a prohibited short cut through a cemetery on his way home from school. On his father's advice, Jeffrey duly reported, but refused to accept the punishment. On that account, he was immediately suspended from school until such time as he was willing to accept the punishment. 11. On 1 October 1976. Jeffrey's parents were officially informed of his suspension. On 18 October, they had an inconclusive meeting with the Senior Assistant Director of Education of the Fife Regional Council during which they repeated their disapproval of corporal punishment. On 14 January 1977, the day after a further meeting, that official informed Mr. and Mrs. Cosans by letter that he had decided to lift the suspension in view of the fact that their son's long absence from school constituted punishment enough; however, he added the condition that they should accept, inter alia, that "Jeffrey will obey the rules, regulations or disciplinary requirements of the school". However, Mr. and Mrs. Cosans stipulated that if their son were to be readmitted to the school, he should not receive corporal punishment for any incident while he was a pupil. The official replied that this constituted a refusal to accept the aforesaid condition. Accordingly, Jeffrey's suspension was not lifted and his parents were warned that they might be prosecuted for failure to ensure his attendance at school. In the event, Jeffrey never returned to school after 24 September 1976. He ceased to be of compulsory school age on 31 May 1977, his sixteenth birthday. 12. Under Scottish law, the use of corporal punishment is controlled by the common law, particularly the law of assault. The general principle is that an assault may give rise to a civil claim for damages or to prosecution for a criminal offence. However, teachers in both State and other schools are, by virtue of their status as teachers, invested by the common law with power to administer such punishment in moderation as a disciplinary measure. Excessive, arbitrary or cruel punishment by a teacher or its infliction for an improper motive would constitute an assault. The teacher's power of chastisement, like that of a parent, derives from his relationship with the children under his care and is therefore not in the nature of a power delegated by the State. Thus, the administration of corporal punishment as a disciplinary measure is, subject to the limitations imposed by the common law as described above and to any conditions incorporated in the teacher's contract with the education authority employing him, left to the discretion of the teacher. 13. In the two schools concerned, corporal chastisement takes the form of striking the palm of the pupil's hand with a leather strap called a "tawse". For misconduct in the class-room, punishment is administered there and then, in the presence of the class; for misconduct elsewhere and for serious misconduct, it is administered by the Headmaster, or his deputy, in his room. The Commission noted that, on the facts of the case, it could not be established that the applicants' children had suffered any adverse psychological or other effects which could be imputed to the use of corporal punishment in their schools. 14. At the time of the events giving rise to this case, the administration of the Scottish educational system was regulated by the Education (Scotland) Act 1962, now repealed and reenacted without material change by the Education (Scotland) Act 1980. Central government formulates general policy, promotes legislation and exercises supervision; the primary responsibility for organising facilities is vested in regional education authorities who are required to secure that "adequate and efficient provision" of school education is made for their area. Section 29 (1) of the 1962 Act provided that "in the exercise and performance of their powers and duties under this Act, the Secretary of State and education authorities shall have regard to the general principle that, so far as is compatible with the provision of suitable instruction and training and the avoidance of unreasonable public expenditure, pupils are to be educated in accordance with the wishes of their parents". 15. Successive Education Acts have empowered the Secretary of State for Scotland "to make regulations prescribing the standards and general requirements to which every education authority shall conform" in discharging its functions. According to the Government, he is not thereby permitted to change the substantive law on a teacher's right to administer corporal punishment, which would require primary legislation. There are, in fact, no statutory provisions governing the use of corporal punishment and the utilisation of this method of discipline is a matter for the discretion of the individual teacher, subject only to the limits set by the common law and to any particular conditions in his contract of employment. 16. Following agreement in principle that the teaching profession should be encouraged to move towards the gradual elimination of corporal punishment as a means of discipline in schools, a consultative body - the Liaison Committee on Educational Matters, on which the Scottish Education Department, the Association of Directors of Education and the teachers' associations were represented - prepared in 1968 a booklet entitled "Elimination of Corporal Punishment in Schools: Statement of Principles and Code of Practice". The Code reads as follows: "Until corporal punishment is eliminated its use should be subject to the following rules: (i) It should not be administered for failure or poor performance in a task, even if the failure (e.g., errors in spelling or calculation, bad homework, bad handwriting, etc.) appears to be due not to lack of ability or any other kind of handicap but to inattention, carelessness or laziness. Failure of this type may be more an educational and social problem than a disciplinary one, and may require remedial rather than corrective action. (ii) Corporal punishment should not be used in infant classes. Its elimination from infant classes should be followed by progressive elimination from other primary classes. (iii) In secondary departments, only in exceptional circumstances should any pupil be strapped by a teacher of the opposite sex or girls be strapped at all. (iv) Corporal punishment should not be inflicted for truancy or lateness unless the head teacher is satisfied that the child and not the parent is at fault. (v) The strap should not be in evidence, except when it is being used to inflict corporal punishment. (vi) Where used, corporal punishment should be used only as a last resort, and should be directed to punishment of the wrong-doer and to securing the conditions necessary for order in the school and for work in the classroom. (vii) It should normally follow previous clear warning about the consequences of a repetition of misconduct. (viii) Corporal punishment should be given by striking the palm of the pupil's hand with a strap and by no other means whatever." 17. The above-mentioned booklet, whose issue was welcomed by the Secretary of State of Scotland, was sent to all education authorities in February 1968. The code of Practice, which was reissued in 1972, has no statutory force; however, the courts might be expected to have regard thereto in civil or criminal proceedings concerning an allegedly unlawful use of corporal punishment, and failure to observe it might be relevant in disciplinary proceedings. The authorities take the view that, within the guidelines set by the Code, it is for the teachers in each school to determine the disciplinary measures needed in the school. The Code is not incorporated into the contracts of employment of teachers in the Strathclyde or Fife Education Authority areas, although they have been recommended to abide by it. 18. In 1974, the Secretary of State for Scotland appointed an independent committee of inquiry ("the Pack Committee") to investigate indiscipline and truancy in Scottish schools. The Committee, which reported in 1977, was of the opinion "that corporal punishment should, as was envisaged in 1968, disappear by a process of gradual elimination rather than by legislation". The Government remain committed to a policy aimed at abolishing corporal punishment as a disciplinary measure in Scottish schools, but they take the view that that policy is best implemented by seeking to secure progress in this direction by consensus of all concerned rather than by statute. A working group established in 1979 by the Convention of Scottish Local Authorities has been considering, inter alia, the introduction of alternative sanctions and there are, in fact, some schools in which the use of corporal punishment has ceased or will soon be abandoned. However, its continued use by teachers is apparently, according to a recent opinion survey, favoured by a large majority of Scottish parents and, according to the Pack Committee's report, by pupils, who even prefer it to some other forms of punishment. 19. Under regulation 4 of The Schools General (Scotland) Regulations 1975, an education authority may exclude a pupil from school if "the parent of the pupil refuses or fails to comply, or to allow the pupil to comply, with the rules, regulation or disciplinary requirements of the school". Under section 35 of the 1962 and of the 1980 Education (Scotland) Acts, if a child fails "without reasonable excuse" to attend school regularly, the parent is guilty of an offence; unless the court otherwise determines, a child is deemed to have so failed if he has been required to discontinue his attendance on account of "his parent's refusal or failure to comply" as aforesaid.