The Pitcairn Prosecutions and the Rule of Law
| Author | Stephen Allen |
| Published date | 01 November 2012 |
| DOI | http://doi.org/10.1111/j.1468-2230.2012.00940.x |
| Date | 01 November 2012 |
REVIEW ARTICLE
The Pitcairn Prosecutions and the Rule of Law
Stephen Allen*
Dawn Oliver (ed),Justice, Legality and the Rule of Law: Lessons from the
Pitcairn Prosecutions, Oxford: Oxford University Press, 2009, 320 pp, hb £55.00.
This edited collection was produced in response to the Privy Council’s contro-
versial decision in Christian and Others vThe Queen1(Christian and Others).
This decision addressed the legality of prosecutions brought under the Sexual
Offences Act 1956 (the 1956 Act) against seven male inhabitants of Pitcairn
Island, a remote British Overseas Territory,2for the rape and indecent assault of
numerous female children.Notwithstanding the abhorrent nature of the offences
in issue, the Pitcair n prosecutions raised profound questions for the rule of law,
arising from the Crown’s claim of jurisdiction over Pitcairn, and from the fact
that the provisions of the 1956 Act had not been published on the Island. The
Crown could show that the legal instruments required to support its claim of
jurisdiction had been enacted and that the 1956 Act had been incorporated into
‘Pitcairn law’ by general reference. However,the Crown’s governance of Pitcairn
was largely a paper exercise. Consequently, the central questions for the Privy
Council in Christian and Others were whether the Crown had the necessary
jurisdiction to institute the prosecutions, and whether the applicable law was
promulgated in a way that would meet the requirements of the principle of
nulla poena sine lege. The Privy Council was satisfied that Pitcairn was a British
possession and that the legal instruments, which underpinned the Crown’s
assertion of jurisdiction, were in order.The major ity were content to rely on the
principle of ignorantia juris non excusat to uphold the convictions. Only Lord Hope
was prepared to reflect upon the principles on which the rule of law is based and
to consider their potential effect on the legality of the prosecutions.
The essays in this book explore the legal and moral tensions apparent within
the prosecutions – the contests between positivism and non-positivism; univer-
salism and relativism; the common law and the prerogative; and the legitimate
scope of the applicable normative orders (English law,‘Pitcairn law’, the European
Convention on Human Rights, and international law). In her essay, Oliver
provides a vivid and balanced account of the problems that the prosecutions
*Department of Law,Queen Mary, University of London.I wish to thank Malgosia Fitzmaurice, Maks
Del Mar and the MLR referees for their helpful comments and suggestions on this essay.
2 Pitcairn Island is located in the Southern Pacific Ocean. It is roughly equidistant from Chile and
New Zealand. The Island is about two and a half miles long and one mile wide. The Pitcairn
archipelago includes the islands of Pitcairn, Henderson, Ducie and Oeno. Only Pitcairn is perma-
nently inhabited.
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© 2012The Author.The Modern Law Review © 2012The Moder n LawReview Limited. (2012) 75(6) MLR 1150–1174
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
generated for the rule of law from a public law perspective. Andrew Lewis offers
a fascinating account of Pitcairn’s troubled history since it was settled by Fletcher
Christian and the remnants of the mutinous crew of The Bounty, and a small
group of Polynesians in 1790. He traces the Crown’s reactionary and irregular
approach to Pitcairn’s governance from its ambiguous acquisition of sovereignty
in the mid-nineteenth century until the moment the prosecutions were insti-
tuted. In their respective essays, Stephen Guest, George Letsas and Gordon
Woodman claim that the Crown lacked the jurisdiction to bring the prosecutions
and that they amounted to an abuse of process, in any event. Letsas and Guest
endeavour to gauge the legality of the prosecutions from a non-positivist view-
point. Letsas focuses on the question of jurisdiction. He harnesses Dworkin’s
notion of a ‘true community’ to assess whether English law generated legal and
moral obligations for the Pitcairn islanders. Guest is more concerned about the
issue of promulgation, which he examines through the relativist lens of ‘encul-
turation’.Woodman considers the extent to which the common law, which the
English settlers were deemed to have taken with them, was modified by the
pluralistic cultural practices that evolved on Pitcairn, and whether the courts in
Christian and Others should have taken such developments into account when
assessing the appellants’ conduct. In contrast,Colm O’Cinneide draws on inter-
national human rights law to expose the shortcomings of the ‘cultural difference’
arguments that were made in response to the prosecutions; he argues that the
prosecutions were morally and legally justified. In their essay, Kritsiotis and
Simpson assess whether the UK was entitled to exercise sovereign authority and
jurisdiction over Pitcairn as a matter of international law.Although they believe
the Crown possessed the necessary jurisdiction to institute the prosecutions,Dino
Kritsiotis and A.W.B. Simpson suggest that the prosecutions failed to satisfy the
international legal standards relating to the principle of nulla poena sine lege.3
This review essay sets out the background of the Pitcairn prosecutions before
examining the pivotal issues – whether the Crown possessed the necessary
jurisdiction to institute the prosecutions; and whether they amounted to an abuse
of process – in separate sections.Each section begins with an analysis of the Privy
Council’s findings in Christian and Others before undertaking a thematic assess-
ment of the arguments offered by the authors of this book. The final section
addresses Kritsiotis and Simpson’s suspicion that the outcome in Christian and
Others might have been different if the appellants’ actions could have been
balanced with the UK’s failure to meet the international legal obligations it owed
to the inhabitants of this non-self-governing territory, in a way that the Privy
Council conspicuously failed to do.
THE PITCAIRN PROSECUTIONS
In 2003, the Crown prosecuted seven male inhabitants of Pitcairn Island on 30
counts of rape and indecent assault committed against numerous female children
(mostly between the ages of ten and fifteen) between 1964 and 1999.They were
3 The book also contains an afterword by Marilyn Strathern, an eminent social anthropologist.
Stephen Allen
© 2012 TheAuthor.The Moder n Law Review© 2012 The Modern Law Review Limited. 1151
(2012) 75(6) MLR 1150–1174
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