Legality and Reality: Some Lessons from the Pitcairn Islands
| Author | Fran Wright |
| DOI | 10.1350/jcla.2009.73.1.549 |
| Published date | 01 February 2009 |
| Date | 01 February 2009 |
| Subject Matter | Article |
Lessons from the Pitcairn Islands
Fran Wright*
Abstract
This article considers the decision to prosecute a number of
Pitcairn islanders for offences under the UK Sexual Offences Act 1956, and
some aspects of the organisation of the prosecutions. The islanders com-
plained that the prosecutions were an abuse of process because the
content of the law was unascertainable and the legislation governing their
trials was retrospective. The abuse of process claims were rejected. There
was a mechanism by which islanders could ask the island officials and
legal advisers for advice. It was predictable that non-consensual sexual
intercourse would be a criminal offence. They were not prejudiced in any
way by the late constitution of a criminal justice system. Although some of
the decisions made in the Pitcairn case were questionable from a formalist
point of view, most were fair in the peculiar circumstances of this small
and remote island. The idea of the rule of law and of a fair trial cannot be
divorced from the context in which criminal justice decisions are taken.
Keywords
Pitcairn Islands; Rule of law; Ascertainability; Certainty;
Retrospectivity
The Pitcairn Islands are the most remote of the remaining UK Overseas
Territories, and are made up of Pitcairn, Henderson, Ducie and Oeno
islands. Of these, only Pitcairn is occupied. It is a small island—4.35
square kilometres—supporting a tiny population, just 48 in 2007.1
Pitcairn has no landing strip for aeroplanes and only one landing place
for boats. Large ships cannot land, and cargo and passengers must be
ferried ashore in longboats. Supply boats visit the island twice a year,
and it is also visited by passing yachts and container ships. In the late
1990s, a number of women from Pitcairn complained to a visiting police
officer that they had been the victims of sexual assaults. As a result,
seven Pitcairn residents were charged with rape and indecent assault
under the Sexual Offences Act 1956 (UK).2 Their trials were held on
Pitcairn, and six of them were convicted and sentenced to (relatively
short) terms of imprisonment.
This article considers the decision to prosecute the men under the UK
Sexual Offences Act 1956, and some aspects of the organisation of the
subsequent proceedings. The Pitcairn cases illustrate the difficulties
faced by judges and administrators seeking to balance an adherence to
* Lecturer in Law, Bradford University Law School; e-mail F.Wright@Bradford.ac.uk.
Thanks to Professor Tony Angelo for sparking my interest in this topic and to all
those friends and colleagues who have sat through my endless and no doubt very
boring musings on Pitcairn.
1 http://www.thecommonwealth.org/Templates/YearbookInternal.asp?NodeID=140428,
accessed 17 November 2008. Population numbers fluctuate: in 1999 the population
was as high as 66.
2 These were not the only charges. Charges were also brought against some former
Pitcairn islanders now resident in New Zealand and Norfolk Island. Many, but not
all, of the issues discussed in this article apply equally to these other defendants.
The Journal of Criminal Law (2009) 73 JCL 69–88
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doi:1350/jcla.2009.73.1.549
The Journal of Criminal Law
the rule of law and compliance with the requirements of a fair trial with
the practical needs of a criminal justice system.3 Realism pervaded the
decision-making process from beginning to end. I will argue that al-
though some of the decisions made were questionable from a formalist
point of view, most were warranted. The idea of the rule of law and of a
fair trial cannot be divorced from the context in which criminal justice
decisions are taken. Insistence on adherence to abstract conceptions of
rule of law or fair procedure may, unless tempered with ‘reality’ or
‘common sense’, end up producing systems that are actually incon-
sistent with justice or fairness. Rules that are invoked without reference
to the purpose of those rules do not necessarily end up achieving what
they are expected to achieve.
The legality principle and criminal law
Students of criminal law are taught that the principle of legality (or rule
of law) is a fundamental aspect of the UK criminal justice system. As
Ashworth explains, this principle ‘expresses an incontrovertible min-
imum of respect for the principle of autonomy: citizens must be in-
formed of the law before it can be fair to convict them of an offence’.4
There are several different but closely related ways in which the
legality principle might be breached by those defining or applying the
criminal law. For instance, a person might be charged with an offence
that had not yet come into existence or that did not cover their behavi-
our at the time when they allegedly committed the offence but was later
amended. It is also a problem if the existence of an offence has not been
publicised or if the scope of an offence or defence is unclear, making it
impossible (or very difficult) for ‘offenders’ to know that their conduct
was criminal before acting as they did.5
However, these are not absolute rules, and breaches of rule of law
principles do not automatically result in a court refusing to proceed with
a trial or deciding to quash a conviction. There is tension between
fidelity to rule of law and due process on the one hand, and the pro-
tection of the community from those who commit crime on the other:
[A]ny prohibition on retrospective laws will, in certain cases, contradict the
demand of substantive justice. This is due to the fact that the prohibition on
retrospective laws will prevent some people from being prosecuted for
offences not because they are morally free of blame, but because the legal
system was not properly set up when they did what they did. There is thus
a tension between the ideal of fidelity to law and the need to prosecute
3 It should be noted that the Pitcairn defendants also denied that Pitcairn was a
British territory. These arguments will not be discussed in this article.
4 A. Ashworth, Principles of Criminal Law, 4th edn (Oxford University Press: Oxford,
2006) 68.
5 The principle is set out in Art. 7 of the European Convention on Human Rights: ‘no
one shall be held guilty of any offence on account of any act or omission which did
not constitute an offence under national or international law at the time when it
was committed’. The Human Rights Act 1998 requires judges to act compatibly
with the rights in the Convention, to interpret statutes consistently with the
Convention and to take account of ECHR jurisprudence. This entrenches rule of
law principles more deeply.
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Legality and Reality: Some Lessons from the Pitcairn Islands
those who have committed what everyone agrees are extremely wicked
acts.6
The European Convention on Human Rights states, in Article 2, that
‘Everyone’s right to life shall be protected by law’. This is not merely a
reference to the rights of wrongdoers. The Article creates a positive
obligation: ‘a primary duty on the state to put in place a legislative and
administrative framework designed to provide effective deterrence
against threats to the right to life’.7 The right to life is concerned with
physical safety generally. English criminal law’s acceptance of a ‘defence’
of reasonable chastisement was held to be in violation of this right in A
v United Kingdom.8 Article 8, which is concerned with respect for private
and family life, is also relevant: this was breached in X & Y v Netherlands,
where there was no provision to provide for criminal prosecution of
someone suspected of indecent assault of a 16-year-old with learning
disabilities.9 More widely, the victims’ rights movement and advocates
of restorative justice both argue for ‘changing the focus of the term
“criminal justice” itself, away from the assumption that it is a matter
concerning only the state and the defendant/offender, and towards a
conception that includes as stakeholders the victim and the community
too’.10
One qualification to these principles ought to be noted. They do not
have identical content and strength in all jurisdictions, and in particular
a colonial possession may not be held to the same ‘standard’ as its
governing territory. The Pitcairn Islands have neither a written constitu-
tion nor a charter of basic rights, and the Human Rights Act 1998 does
not apply.11 Attempts have been made in the past to argue that because
colonies’ powers to legislate are limited—they may legislate ‘for the
peace, order and good government’ of the territory—any legislation that
is contrary to rule of law principles is ultra vires. This argument was
soundly rejected in Liyanage.12 Each jurisdiction must be considered in
its own terms. In Liyanage itself, for instance, legislation was held to be
ultra vires because it was an invasion of the independence of the judici-
ary. However, this was not because of any breach of rule of law prin-
ciples but because the written constitution of Ceylon (Sri Lanka)
showed ‘an intention to secure in the judiciary a freedom from political,
legislative and executive control’. The result of this contextual approach
to rule of law is summarised in Bancoult:13
6 G. Taylor ‘Retrospective Criminal Punishment under the German and Australian
Constitutions’ (2000) 23 UNSW Law Journal 196 at 231.
7 Öneryildiz v Turkey (2005) 41 EHRR 20 at para. 89.
8 A v United Kingdom (1999) 27 EHRR 611.
9 X & Y v Netherlands (1986) 8 EHRR 235. The problem was that no one had the
ability to make a complaint on her behalf, and she was unable to do this for herself.
10 A. Ashworth,...
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