Christian and Others v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hoffmann,Lord Woolf,Lord Hope of Craighead |
| Judgment Date | 30 October 2006 |
| Neutral Citation | [2006] UKPC 47 |
| Court | Privy Council |
| Docket Number | Appeal No 109/2005 |
| Date | 30 October 2006 |
[2006] UKPC 47
Present at the hearing:-
Lord Hoffmann
Lord Woolf
Lord Steyn
Lord Hope of Craighead
Lord Carswell
Privy Council
[Delivered by Lord Hoffmann]
This is an appeal by special leave from the Pitcairn Court of Appeal (Henry P, Barker and Salmon JJA) affirming the convictions of the six appellants by the Pitcairn Supreme Court on charges of rape, indecent assault and incest. The issues upon which leave was given do not concern the merits of the convictions but relate to the validity of the laws creating the offences and the question of whether the bringing of the prosecutions was an abuse of process. At the hearing before the Board, however, leave was sought to appeal on two further matters concerning respectively the elements of the crime of rape and the judge's approach to the evidence. Their Lordships will deal with these applications later.
Pitcairn is a small and remote island in the South Pacific between New Zealand and Chile. It was occupied in 1790 by a group of mutineers from HMAV Bounty and some Polynesian men and women. In 1856 the small population removed itself to Norfolk Island but a few families returned two or three years later and re-established themselves. In the nineteenth century the forms of government were rudimentary, consisting of rules drawn up locally or with the assistance of the commanding officers of ships of the Royal Navy which made infrequent visits.
In 1893 Her Majesty in Council made the Pacific Order in Council to provide a system of government for British settlements in the Pacific. The Order was made under the British Settlements Act 1887, which gave power to establish "all such laws and institutions" as might appear to Her Majesty in Council to be "necessary for the peace, order and good government of Her Majesty's subjects and others within any British settlement." A "British settlement" was defined as any British possession "which has not been acquired by cession or conquest" and which did not have its own legislature.
Article 6(1) of the Order provided that, until otherwise directed by the Secretary of State, jurisdiction should be exercised only over certain islands which did not include Pitcairn, but article 6(2) gave the Secretary of State power to direct that other British settlements in the Pacific should be added. In 1898 the Secretary of State directed that the Order should apply to Pitcairn. The direction was therefore a statement by the Crown that Pitcairn was a British settlement.
The Order set up a High Commissioner's Court for the Western Pacific with criminal and civil jurisdiction. Article 20 provided that such jurisdiction should be exercised "so far as circumstances admit…upon the principles of and in conformity with the substance of the law for the time being in force in and for England."
The application of the Pacific Order in Council to Pitcairn was revoked by the Pitcairn Order in Council 1952, which provided that the Governor of Fiji should also be Governor of Pitcairn and some neighbouring uninhabited islands ("the Islands") and have power to make laws for the "peace order and good government" of the Islands. A savings clause provided that until the Governor made other provision, the jurisdiction of the High Commissioner's Court and the law which it applied should continue in force. Other provision was made by Judicature Ordinance 1961, which replaced the jurisdiction of the High Commissioner with that of the Supreme Court of Fiji. The Ordinance also dealt with the law to be applied in Pitcairn:
7. Subject to the provisions of section 8 of this Ordinance the substance of the law for the time being in force in and for England shall be in force in the Islands.
8. All the laws of England extended to the Islands by this Ordinance shall be in force therein so far only as the local circumstances and the limits of local jurisdiction permit and subject to any existing or future Ordinance and for the purpose of facilitating the application of the said laws it shall be lawful to construe the same with such formal alterations not affecting the substance as to names, localities, courts, offices, persons, moneys, penalties and otherwise as may be necessary to render the same applicable to the circumstances.
The independence of Fiji in 1970 meant that new provision had to be made for the governorship of Pitcairn. The Pitcairn Order 1970, made in exercise of the powers vested in Her Majesty by the 1887 Act "or otherwise" replaced the 1952 Order and provided for a Governor appointed by Her Majesty with the same power, in section 5(1), to make laws for "the peace, order and good government of the Islands". By section 5(3), all such laws made by the Governor were to be "published in such manner and at such place or places in the Islands as the Governor may from time to time direct." The Governor made the Judicature Ordinance 1970, which repealed the 1961 Ordinance and created a Supreme Court having the same jurisdiction in Pitcairn as the High Court of Justice in England. Section 14 dealt with the law which the Supreme Court was to apply:
(1) Subject to the provisions of the next succeeding subsection the common law, the rules of equity and the statutes of general application as in force in and for England at the commencement of this Ordinance shall be in force in the Islands.
(2) All the laws of England extended to the Islands by the last preceding subsection shall be in force therein so far only as the local circumstances and the limits of local jurisdiction permit and subject to any existing or future Ordinance and for the purpose of facilitating the application of the said laws it shall be lawful to construe the same with such formal alterations not affecting the substance as to names, localities, courts, offices, persons, moneys, penalties and otherwise as may be necessary to render the same applicable to the circumstances.
This Ordinance was duly published in accordance with section 5(3) and was in force at the time when the offences were committed. The appellants were charged under provisions of the Sexual Offences Act 1956, which was a law of general application in force in England at the time of the commencement of the Ordinance.
The first point taken by the appellants is that the 1970 Ordinance was ultra vires the 1887 Act, either because Pitcairn was never a British possession at all or, alternatively, because it had been acquired by cession and was therefore outside the definition of a "British settlement". In support of the first argument, Mr Cook QC proposed to take their Lordships to the history of the island to demonstrate that the islanders never acknowledged allegiance to the Crown. Their Lordships declined to investigate this question because it appears to them that the legal status of the island as a British possession is concluded by successive statements of the executive, starting with the direction of the Secretary of State in 1898 and ending with the making of the 1970 Order in Council. In The Fagernes [1927] P 311, 324, Atkin LJ said:
"What is the territory of the Crown is a matter of which the Court takes judicial notice. The Court has, therefore, to inform itself from the best material available; and on such a matter it may be its duty to obtain its information from the appropriate department of Government. Any definite statement from the proper representative of the Crown as to the territory of the Crown must be treated as conclusive."
This is not the occasion on which to explore the limits of this doctrine, but their Lordships consider that the present case falls squarely within it. For over a hundred years Pitcairn has been administered by the Crown as a British possession and whatever its history or the inclinations of its people may have been, it is unthinkable that the Judicial Committee of Her Majesty's Privy Council would not accept an executive statement affirming it to be part of the territory of the Crown. The directions of 1898 and the Orders in Council of 1952 and 1970 are statements of this kind.
The argument that the Crown acquired Pitcairn by cession is a novel one. Cession by whom? The notion of cession contemplates a transfer of sovereignty by one sovereign power to another. So, for example, by the Treaty of Utrecht in 1713, Gibraltar was ceded to Great Britain by the Kingdom of Spain. In Sammut v Strickland [1938] AC 678 the Privy Council recognised the possibility of a cession by the people of a territory (in that case, Malta during the Napoleonic Wars) who had assumed sovereign authority over themselves. But the analogy with the people of Pitcairn seeking the protection of the Crown seems to their Lordships somewhat far fetched. In any case, the question appears to their Lordships to be quite academic, since there is no doubt that the power of the Crown to legislate for a conquered or ceded possession is more extensive than its power to legislate for a settled colony: see Blackstone's Commentaries (4 th ed 1770) at p. 107. As the 1970 Ordinance was made under the powers vested in Her Majesty by the 1887 Act "or otherwise", it is valid whether Pitcairn was settled or ceded.
Mr Cato submitted next for the appellants that the language of section 14 of the 1970 Ordinance was too imprecise to incorporate the 1956 Act as part of the law of Pitcairn. What was a statute "of general application"? And there could be much dispute over whether "local circumstances" made it appropriate for the law to apply. But this language has been used in legislation for British overseas possessions for many years without causing any...
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