Criminal Law: Ascertainability
| Author | Fran Wright |
| Published date | 01 April 2007 |
| Date | 01 April 2007 |
| DOI | http://doi.org/10.1350/jcla.2007.71.2.137 |
| Subject Matter | Privy Council |
Privy Council
Criminal Law: Ascertainability
Christian (Steven Raymond) and Others v The Queen [2006] UKPC 47
The six appellants appealed against a decision of the Pitcairn Court of
Appeal, sitting in New Zealand, upholding their convictions by the
Pitcairn Supreme Court for rape and indecent assault under ss 1 and 14
of the Sexual Offences Act 1956. The offending had taken place over a
period in excess of 30 years and the appellants and complainants com-
prised a substantial proportion of the population of Pitcairn.
The proceedings were challenged by defence counsel on various
grounds. The first challenge was to British authority over the
Islands. The second challenge was to the assumption that the Sexual
Offences Act 1956 applied in Pitcairn. The third argument was that the
court should use its discretion to stay the proceedings because they were
an abuse of process. This argument was multi-faceted, relying on,
inter alia:
1. the fact that Pitcairn Islanders could not have consulted the Sexual
Offences Act, since there was no copy of the Act on the Island, and
there were no lawyers on the Island who could have advised them
of its contents;
2. the delay in prosecution;
3. the lack of a right of appeal at the time when the offending
occurred;
4. the decision to adopt New Zealand court models and appoint New
Zealand rather than British judges and other court and criminal
justice officers.
The Pitcairn Court of Appeal rejected all of these arguments.
The court described the jurisdiction argument as:
somewhat startling, when it is beyond question that the United Kingdom
has, without protest from any quarter until the present challenge was
mounted by these applicants on their own behalf, expressly claimed
Pitcairn Island as one of its possessions and exercised jurisdiction and
governance over it as such since, at the very latest, 1898. (Queen v 7 Named
Accused [2004] PNCA 1 at [6])
The court held that that the act of state doctrine applied: ‘an assertion by
the Crown of jurisdiction over a territory is an act of state, not suscepti-
ble to challenge’ (see [2004] PNCA 1 at [12]). It concluded that Pitcairn
was a British settlement.
The court accepted that the Sexual Offences Act 1956 was part of
Pitcairn law. Pitcairn is a small island with a small population, and
although it has some local statutes, much of its law was imported from
England. This had been done through the general device of incorpor-
ating into local law the ‘law for the time being in force and for England’
137
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