A. v. THE UNITED KINGDOM JUDGMENT OF 23 SEPTEMBER 1998
5
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.
Corporal punishment of a child by a teacher cannot be justified if the
punishment is inhuman or degrading. In determining whether punishment is
inhuman or degrading, regard is to be had to “all the circumstances of the
case, including the reason for giving it, how soon after the event it is given,
its nature, the manner and circumstances in which it is given, the persons
involved and its mental and physical effects” (section 47(1)(a) and (b) of the
Education (no. 2) Act 1986, as amended by section 293 of the Education
Act 1993).
B. Civil remedies for assault
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.
PROCEEDINGS BEFORE THE COMMISSION
16. A. applied to the Commission on 15 July 1994. He complained that
the State had failed to protect him from ill-treatment by his step-father, in
violation of Articles 3 and/or 8 of the Convention; that he had been denied a
remedy for these complaints in violation of Article 13; and that the domestic
law on assault discriminated against children, in violation of Article 14 in
conjunction with Articles 3 and 8.
17. The Commission declared the application (no. 25599/94) admissible
on 9 September 1996. In its report of 18 September 1997 (Article 31), it
expressed the opinion that there had been a violation of Article 3
(unanimously); that it was not necessary to consider the complaint under
Article 8 (sixteen votes to one); that there had been no violation of
Article 13 (unanimously) and that it was not necessary to consider the