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Judicial CP - October 1981

Corpun file 22736

Glasgow Herald, UK, 5 October 1981

Youth flies to Isle of Man for birching appeal

By Charles Gillies

Press cutting

HUGH O'Callaghan, the 16-year-old youth from Glasgow who was sentenced to four strokes of the birch on the Isle of Man during the summer after he allegedly attacked a youth with a tumbler on the Ardrossan-Isle of Man ferry, yesterday flew back to the island where his appeal against the sentence will be heard today.

The appeal has wide implications because the European Court of Human Rights outlawed birching on the island in 1978 and declared it a "degrading practice."

However, Isle of Man magistrate Mr Allan Wilcocks decided after the incident on the ferry to sentence O'Callaghan to four strokes of the birch.

The appeal will be heard at Castletown by the island's First Deemster -- equivalent to a High Court Judge in Scotland -- and his fellow appeal Judge, Mr Benet Hytner, Q.C.

A pro-birching petition on the Isle of Man has been signed by 31,000 of the island's population of 61,000. If the appeal fails it could become the subject of another appeal to the Privy Council.

Perhaps more important is that the issue could become a prime factor in the island's general election, which will take place in November.

The outcome could also influence the island's relationship with Britain and the EEC. Feeling on the island is running high because of the forthcoming general election.

Corpun file 22735

Glasgow Herald, UK, 6 October 1981

'Birch me' youth to be sentenced today

By Charles Gillies

Mr James Quinn

HUGH O'CALLAGHAN, the 16-year-old Glasgow boy who yesterday abandoned his appeal against being sentenced to four strokes of the birch on the Isle of Man, will hear the court's decision this afternoon.

Last night he was in a Douglas prison. In July O'Callaghan was sentenced to the birch by Justice of the Peace Allan Wilcocks after admitting malicious assault by hitting an 18-year-old youth, Jim Gilmour, in the face with a glass.

Yesterday, at a special court in Castletown, his appeal was due to be heard. However when the court heard the appeal was being abandoned it said this should not be done without a hearing and it summoned the boy's counsel, Mr James Quinn, to appear.

The boy himself did not appear and for more than five hours legal arguments for and against birching were discussed before two Judges.

Mr Arthur Luft, the First Deemster, equivalent to a High Court Judge, was in charge of the case assisted by Mr Benet Hytner, QC, an English Judge who is heading the inquiry into the recent rioting in Moss Side, Manchester.

Legal arguments over the right to birch took up the whole day and at 7.30 p.m. the court was still sitting. Meanwhile, O'Callaghan was in prison in Douglas, almost 10 miles away.

Mr Hytner told O'Callaghan's counsel: "We have to look at the rules that apply in the Isle of Man where three days' notice are required to abandon an appeal in such cases as this."

After a lengthy legal argument on the rules governing an appeal the court was adjourned for two-and-a-half hours.

The youth's lawyer, Mr Quinn, told the court: "My client's intentions are firm. He wishes to be birched and get this over with."

Several hours of legal arguments, with case histories as far back as the 1890s being quoted, were heard by the two judges.

Press cutting

Mr Hytner said at one point: "I don't think it is for your client to decide whether it is right or wrong in principle for him to be birched. It will come as a great surprise to those who think birching is a degrading practice that your client would be prepared to be birched rather than receive one of the alternative forms of punishment open to this court."

He then outlined the punishments which the Appeal Court could enforce from an absolute discharge to a period in a borstal institution.

In court the Isle of Man Attorney General Mr William Cain claimed the sentence was inappropriate and wrong in principle as birching was degrading within the meaning of the Convention of Human Rights of the Council of Europe. This statement startled the large number of pro-birching supporters in the courtroom. Mr Cain said: "I ask the court to put birching in mothballs."

The Isle of Man has a general election next month in which birching will be a major issue. A petition conducted recently has 31,000 signatures in favour of birching as a deterrent to the rising crime rate. The island's population is 61,000.

If a decision is taken to go ahead with the birching a further legal problem lies ahead for the authorities. The law lays down that a doctor must examine the victim and be present throughout the punishment, but any doctor who did that could be putting his career at risk.

At its annual conference this year, the British Medical Association attacked the participation of doctors in torture and cruel punishment and it was made clear birching on the Isle of Man came into this category.

Yesterday the association's ethical affairs officer, Dr John Dawson, said: "We have said very clearly it would be unethical for a doctor to attend corporal punishment, or to examine somebody beforehand to certify that he is fit to undergo this punishment. I think the General Medical Council would also take account of it, and the person concerned would very likely be in jeopardy from that quarter."

Corpun file 22734

Glasgow Herald, UK, 7 October 1981

'Birch' youth held for third hearing

By Charles Gillies

O'Callaghan after yesterday's hearing HUGH O'Callaghan, the Glasgow youth who travelled to the Isle of Man on Sunday to appeal against a birching sentence, then said on Monday that he would accept the punishment, was still in custody last night.

Yesterday two Judges in the island's highest court of appeal virtually banned the birch when they quashed his appeal and ordered him to be detained for another magistrates' hearing.

It is unlike to take place for at least two weeks, because social workers will have to prepare the background report.

The court will have nine alternatives to birching, ranging from a conditional discharge to a fine or detention in a Borstal institution.

Counsel for O'Callaghan (16) who was sentenced to four strokes of the birch for striking another Scots youth with a beer glass, told the appeal court that he now wanted to be birched and get it over.

After yesterday's verdict Mrs Peggy Irving, who raised 31,000 signatures out of the island's 45,000 electorate in the pro-birching campaign, described it as "shocking".

"This is moral blackmail of the magistrates who will be judging this case once again. They may not be the same magistrates, but I only hope they will stick to the original decision for birching.

"Crime on the Isle of Man has risen by a third in the last three years and we feel that birching is the only deterrent which works.

"I now feel a bit sorry for this boy. I was proud of him because he elected to take the birching punishment, but that in no way condones what he did.

"We will now have to wait to see what happens at the next court and meanwhile the boy will have to be locked up in police custody."

Yesterday's judgment was given by Mr Benet Hytner, QC, who said: "In our view a decision of the European Court of Human Rights is binding on us.

"Sentences of birching, if carried out, would render the United Kingdom and the Isle of Man in breach of an international treaty obligation."

He said none of the Manx magistrates had been given guidance on the law to repeal their power to order the birch.

The sentence by the magistrates was perfectly lawful, but it followed that either the United Kingdom or the Manx Government were so unconcerned about being in breach of international treaty obligations to extract them from the consequences. "We regard this as a most unsatisfactory state of affairs."

He outlined the nine other possible punishments for O'Callaghan, who comes from Pollokshaws, Glasgow, and said: "Whipping should only be considered where the other punishments were unacceptable."

Press cutting

He and his fellow-Judge, Mr Arthur Luft, the senior Judge on the island, had been surprised that the magistrates ordered birching after four and a half years without considering all the consequences.

Mr Hytner continued: "We are not satisfied that birching would be a deterrent to a boy who was drunk.

"We don't know what was going through his mind -- whether he thought birching was a less serious punishment than detention, whether he wished to go back to Scotland to boast about it and to tell his story, or perhaps to sell his story.

"Whatever the reason, we feel his desire to be birched indicates that he is temperamentally unsuited for that punishment."

The Isle of Man General Election is due to take place on November 19, and birching and capital punishment will figure largely in the candidates' campaigns.


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