CASE OF A. v. THE UNITED KINGDOM
Violation of Art. 3;Not necessary to examine Art. 8;Not necessary to examine Art. 13;Not necessary to examine Art. 14;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
C. Russo;John Freeland
7. The applicant is a British citizen, born in 1984. In May 1990 he and his brother were placed on the local child protection register because of “known physical abuse”. The cohabitant of the boys’ mother was given a police caution after he admitted hitting A. with a cane. Both boys were removed from the child protection register in November 1991. The cohabitant subsequently married the applicant’s mother and became his stepfather. 8. In February 1993, the head teacher at A.’s school reported to the local Social Services Department that A.’s brother had disclosed that A. was being hit with a stick by his stepfather. The stepfather was arrested on 5 February 1993 and released on bail the next day. 9. On 5 February 1993 the applicant was examined by a consultant paediatrician, who found the following marks on his body, inter alia: (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. 10. The stepfather was charged with assault occasioning actual bodily harm and tried in February 1994. It was not disputed by the defence that the stepfather had caned the boy on a number of occasions, but it was argued that this had been necessary and reasonable since A. was a difficult boy who did not respond to parental or school discipline. In summing up, the judge advised the jury on the law as follows: “... What is it the prosecution must prove? If a man deliberately and unjustifiably hits another and causes some bodily injury, bruising or swelling will do, he is guilty of actual bodily harm. What does ‘unjustifiably’ mean in the context of this case? It is a perfectly good defence that the alleged assault was merely the correcting of a child by its parent, in this case the stepfather, provided that the correction be moderate in the manner, the instrument and the quantity of it. Or, put another way, reasonable. It is not for the defendant to prove it was lawful correction. It is for the prosecution to prove it was not. This case is not about whether you should punish a very difficult boy. It is about whether what was done here was reasonable or not and you must judge that...” 11. The jury found by a majority verdict that the applicant’s stepfather was not guilty of assault occasioning actual bodily harm. 12. The applicant’s stepfather was charged with “assault occasioning actual bodily harm” contrary to section 47 of the Offences against the Person Act 1861, as amended. An “assault”, for the purposes of this section, includes an act by which a person intentionally or recklessly inflicts personal violence upon another. “Actual bodily harm” includes any hurt or injury calculated to interfere with the health or comfort of the victim; the hurt or injury need not be permanent but must be more than transitory or trifling. The maximum penalty on conviction is five years’ imprisonment. 13. In addition, it is an offence under section 1(1) of the Children and Young Persons Act 1933 to assault or ill-treat a child in a manner likely to cause him unnecessary suffering or injury to health. The maximum penalty on conviction is ten years’ imprisonment. 14. In criminal proceedings for the assault of a child, the burden of proof is on the prosecution to satisfy the jury, beyond a reasonable doubt, inter alia that the assault did not constitute lawful punishment. Parents or other persons in loco parentis are protected by the law if they administer punishment which is moderate and reasonable in the circumstances. The concept of “reasonableness” permits the courts to apply standards prevailing in contemporary society with regard to the physical punishment of children. 15. Physical assault is actionable as a form of trespass to the person, giving the aggrieved party the right to recovery of damages. In civil proceedings for assault, whilst the elements of the tort are the same as those of the criminal offence, the burden of proof of establishing that punishment was reasonable is on the defendant, on the balance of probabilities.