The Tyrer v. the United Kingdom intervention is not mentioned in official case reports because the attempt was unsuccessful in that the actors did not persuade the decision-makers to adopt their claims. However, relevant case files do contain correspondence between the parties.
The actors were established organizations, or individuals who acted on behalf of the organizations. In addition, the actors in the case at hand were legal professionals and possessed expertise in the domestic law of the UK, of which the amicus curiae procedure was an integral part.
At the age of 15, Anthony Tyrer was subjected to three strikes of the birch on the Isle of Man, a punishment imposed by the local juvenile court. Tyrer’s birching took place at a police station, where his father, a doctor, and some police officers were present. After the birching, Tyrer contacted the National Council for Civil Liberties,
412 Anthony Lester, The European Court of Human Rights After 50 Years, University of Copenhagen, 4 March 21 2009, available at www.blackstonechambers.com/document.rm?id=274
which put forth the complaint before the European Court of Human Rights on the day Tyrer turned 16.413The applicant alleged, amongst other complaints, that his birching violated Article 3 (prohibition of torture) of the European Convention.414
Tyrer was represented by Cedric Thornberry, who acted on behalf of the National Council for Civil Liberties (NCCL).415 The NCCL, founded in 1934, was one of the oldest legal advocacy organizations in the United Kingdom. At the time of Tyrer’s request, it already had a rich history of defending civil rights through litigation.416 Cedric Thornberry was himself a barrister and Lecturer in Law. He appeared alongside Tyrer’s other counsel, all of whom were UK-trained lawyers: W.A. Nash, Legal Officer for the NCCL; L. Grant, of the Law Clinic of the University of Kent at Canterbury; and Nigel Rodley, Legal Officer of Amnesty International (acting in private capacity).417
However, in January 1976, Messrs. Dickinson, Cruikshank and Co., solicitors based on the Isle of Man, notified the Commission that the applicant wished to withdraw his application and had already withdrawn his instructions from the NCCL,418 but the Commission declined the applicant’s request.419 The Court defied public opinion and the will of the nominal applicant himself, who seemed to agree that the punishment was justified. Even without the applicant’s consent, the Commission decided that the merits of the case deserved closer examination. Tyrer’s family friend, Susan Kelly, when commenting on the case, indicated that Tyrer always believed that the birching was justified. He was “totally mystified and annoyed about the whole
413 Tyrer v. The United Kingdom, Apr. 25, 1978, para 109.
414 Anthony M. Tyrer against the United Kingdom, Report of the Commission, adopted on 14 December 1976, App. No. 5856/72, Series B, no. 24, at 12.
415 The organization was later renamed into Liberty. Liberty http://www.liberty-human- rights.org.uk/about/index.php
416 Id.
417 Series B. Vol. 24, Report of the Commission at 13. 418 Id.
matter.”420 The British judge on the bench, Sir Gerald Fitzmaurice, had written a powerful and memorable dissent.421
The UK submitted that the case should be struck from the list, because, inter alia, in the future, some forms of corporal punishment were to be abolished by legislation. Nevertheless, both the Commission and the Court opposed striking the case from the list. The Court reasoned that the suggested move by the respondent did not address the fundamental question raised by the case, whether “the corporal punishment as inflicted on the applicant in accordance with Manx legislation is contrary to the Convention.”422
On March 21, 1977, Cedric Thornberry, on behalf of the NCCL, inquired with the Registrar about the opportunity to intervene before the Court.423With the response on March 25, 1977, the Registrar explicated that only the Chamber could, proprio
motu, invite any person to be heard before the Court. Alternatively, the Commission
could decide to employ the assistance of any individual it deemed necessary.424 Following the instructions by the Registrar, Thornberry pursued the matter further with the Secretary of the Human Rights Commission. In a letter on March 31, 1977, he requested “audience” with the Court, despite the “somewhat mysterious events of early 1976 when the Applicant purported to withdraw his petition.” The Council had been involved in preparing the applicant’s submission, and would appreciate it if the Commission would consider its involvement in the case necessary.425 The Commission’s Secretariat responded that considering that the
420 MICHAEL D. GOLDHABER, A PEOPLE’S HISTORY OF THE EUROPEAN COURT OF HUMAN RIGHTS 102 (2009).
421 William Dale, Human Rights in the United Kingdom- International Standards, INT’L. & COMP. L. QRTLY. XXV, 292, 302 (1976).
422 Series A, Vol. 26, para.26.
423 Letter from the Registrar of the Court to Mr. Cedric Thornberry, Strasbourg, 25 March, 1977, Series B. Vol. 24, at 43.
424 Id.
425 Letter from Mr. Cedric Thornberry to the Registrar of the Court, 22 June 1977, Annex I, Series B. at 45.
applicant had withdrawn his instructions from the NCCL, it would not be “appropriate” to request its assistance for the hearing.426
Having been rejected this time by the Commission, Mr. Thornberry wrote again to the Registrar of the Court. This time he annexed a Memorandum to the letter, elucidating certain questions related to the case that otherwise might not become available. In addition, on behalf of the NCCL, he requested the opportunity to develop the issues in oral submission.427 On June 29, the Court’s Registrar explained that the memorandum could not be treated as part of the official case file because the
Commission had declined the participation of the organization, which was entirely in the hands of the Court. The Registrar assured Mr. Thornberry that the letter along with the enclosures would be transmitted to the President of the Chamber. However, they could not be treated as part of the official case file.428 In a follow-up letter to Mr. Thornberry, the Court’s Registrar informed him that the Court had decided not to hear the Council’s position at the public hearings.429
Communication with the NCCL, however, remains mostly entirely in writing with one exception: Mr. Thornberry and Mr. Eissen, the Court’s Registrar, met in person in Strasbourg on October 13, 1977.430