Warren v The State

JurisdictionUK Non-devolved
JudgeLord Hughes,Lord Lloyd-Jones
Judgment Date30 July 2018
Neutral Citation[2018] UKPC 20
CourtPrivy Council
Docket NumberPrivy Council Appeal No 0013 of 2017
Date30 July 2018
The State
(Respondent) (Pitcairn Islands)

[2018] UKPC 20


Lord Mance

Lord Sumption

Lord Hughes

Lord Lloyd-Jones

Lord Briggs

Privy Council Appeal No 0013 of 2017

Privy Council

Trinity Term

From the Court of Appeal of the Pitcairn Islands


Dr Tony Ellis

Graeme Edgeler

(Instructed by Alan Taylor & Co Solicitors)


Simon Mount QC,

Attorney General

Kieran Raftery QC

Danielle Kelly

(Instructed by Moon Beever Solicitors)

Heard on 15 and 16 May 2018

Lord Lloyd-Jones

Lord Hughes AND

History of proceedings

The appellant, Michael Warren, is a resident of Pitcairn Island, the only inhabited island in Pitcairn Islands, a British Overseas Territory in the Pacific Ocean. He appeals against his convictions on 20 charges of possessing child pornography contrary to section 160 of the Criminal Justice Act 1988 (UK) and two charges of possessing grossly indecent items contrary to section 8 of the Pitcairn Summary Offences Ordinance. On 4 March 2016 he was sentenced by Tompkins J to 20 months' imprisonment on each of the child pornography charges and one month's imprisonment on each of the indecent articles charges, all to run concurrently.


These proceedings were accompanied below by numerous applications in which it was maintained that, as a result of alleged flaws in the Pitcairn Islands Constitution (“the Constitution”), failures in administration, deficiencies and impropriety in the appointment of judges, judicial bias and lack of independence and other similar causes, there was systemic constitutional error. The proceedings gave rise to 21 defence applications, 2,000 pages of written submissions, 60 days of oral hearings and 30 judgments. The first Supreme Court judgment on pre-trial issues was delivered by Lovell-Smith J on 12 October 2012 and the second by Haines J on 28 November 2014. Appeals to the Court of Appeal resulted in decisions on 23 October 2015, upholding the pre-trial decisions of the Supreme Court, and on 6 July 2016, upholding the appellant's convictions.

Scope of the leave to appeal

The appellant now appeals to the Judicial Committee of the Privy Council as of right under section 25(10) of the Constitution. This was confirmed by order of the Court of Appeal under section 25(10) made on 9 December 2016 in accordance with the procedure affirmed in Ross v Bank of Commerce (St Kitts and Nevis) Trust and Savings Association Ltd [2010] UKPC 28; [2011] 1 WLR 125).


Section 25 of the Constitution provides in relevant part:

“25. Enforcement of protective provisions

(1) If any person alleges that any of the provisions of this Part has been, is being or is likely to be breached in relation to him or her (or, in the case of a person who is detained, if any other person alleges such a breach in relation to the detained person), then, without prejudice to any other action with respect to the same matter that is lawfully available, that person (or that other person) may apply to the Supreme Court for redress.

(2) The Supreme Court shall have original jurisdiction —

(a) to hear and determine any application made by any person in pursuance of subsection (1); …

and may make such declarations and orders, issue such writs and give such directions as it considers appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of this Part.

(3) The Supreme Court may decline to exercise its powers under subsection (2) if it is satisfied that adequate means of redress for the breach alleged are or have been available to the person concerned under any other law.

(10) An appeal shall lie as of right to the Court of Appeal from any final determination of any application or question by the Supreme Court under this section, and an appeal shall lie as of right to Her Majesty in Council from the final determination by the Court of Appeal of the appeal in any such case; but no appeal shall lie from a determination by the Supreme Court under this section dismissing an application on the ground that it is frivolous or vexatious.”


Section 25 applies only to matters relating to actual or potential breaches of rights under Part 2 of the Constitution in which it appears. Part 2 is entitled “Fundamental Rights and Freedoms of the Individual” and includes in section 8 a right to a fair trial and in section 11 a right to respect for one's private and family life and one's home. Part 2 is to be distinguished from other Parts including Part 3, The Governor; Part 4, The Executive; Part 5, The Legislature and Part 6, The Administration of Justice.


It is, therefore, necessary to distinguish between those grounds of appeal for which leave to appeal has been granted under section 25 and those for which special leave is required.


In the proceedings below the appellant made three relevant applications in the Supreme Court on 19 August 2011, 29 May 2014 and 8 August 2014 respectively, alleging breach of his rights under sections 8 and 11 of the Constitution. Each was both an application pursuant to section 25 of the Constitution and an application for relief in the criminal proceedings, the Supreme Court having jurisdiction over both matters. Those applications were addressed in the Supreme Court by Lovell-Smith J. and Haines J. and, on appeal, by the Court of Appeal in its judgment of 23 October 2015.


The grounds of appeal now relied upon by the appellant are diffuse, amorphous and often overlap with each other. Some 40 grounds in which the appellant submits that he has been denied a fair and public hearing by an independent and impartial tribunal established by law have been grouped together by the appellant in his “Synopsis of Case” under the heading “Ground 1, Independence, Impartiality and Nullity”. The Crown accepts that these grounds fall within the scope of the appeal to this court as of right pursuant to section 25 of the Constitution confirmed by the Court of Appeal, save in those instances where it is sought to advance new grounds on this appeal for the first time.

Grounds founded on section 25, Pitcairn Constitution

The grounds founded on section 25 are wide ranging and allege a denial of a right to be tried before an independent and impartial tribunal. These grounds include (a) the appointment of judges by the Governor who has a conflict of interests; (b) the appointment of judges exclusively from serving and retired New Zealand judges and barristers; (c) failure to pay judges from Pitcairn funds; (d) the use of New Zealand courtroom facilities; (e) appointment of part time judges; (f) specific complaints concerning the appointment of the Chief Justice; (g) specific complaints concerning the appointment of three Court of Appeal judges in 2012; (h) deficiencies in the swearing of judicial oaths; and (i) impropriety in a consultation in 2000 concerning the appointment of judges and counsel in the legal system of Pitcairn.


In her judgment of 12 October 2012, Lovell-Smith J, addressing the first of the three applications referred to above, considered (at paras 85–88) that the application of section 25 was inappropriate and an abuse of process as the completion of the criminal proceedings and the exercise of any criminal appeal rights were the more natural relief available at that time. In her view, dealing with constitutional issues in that venue would unnecessarily complicate the criminal proceedings and might affect the appellant's right to a fair trial, given the factual disputes that would arise during the actual trial. Similarly, in his judgment of 28 November 2014, Haines J concluded (at para 309) that insofar as the abuse of process issues raised under the three applications were also characterised as “constitutional challenges” they were to be addressed in the context of criminal proceedings. Because in those proceedings the appellant had an adequate means of redress, there was no need for the court to exercise its powers under section 25.


In its judgment of 23 October 2015 the Court of Appeal considered in detail the various grounds of appeal founded on section 25 of the Constitution. It dismissed them all. It then went on to note that those matters were able to be and had been fully addressed within the criminal proceedings. Had there been any merit in the allegations of breach of the Constitution, a remedy was available within the criminal proceedings by way of the issuance of a stay, or other remedy proportionate to the breach, if that were appropriate. That being so, it was an abuse of process for the appellant also to resort to section 25. In this regard the Court of Appeal referred to Harrikissoon v Attorney General of Trinidad and Tobago, [1980] AC 265 (PC) per Lord Diplock at 268, Chokolingo v Attorney General of Trinidad and Tobago [1981] 1 WLR 106 (PC), Durity v Attorney General of Trinidad and Tobago [2008] UKPC 59 and Jaroo v Attorney General of Trinidad and Tobago [2002] UKPC 5; [2002] 1 AC 871 where Lord Hope observed at para 39:

“Their Lordships respectfully agree with the Court of Appeal that, before he resorts to this procedure, the applicant must consider the true nature of the right allegedly contravened. He must also consider whether, having regard to all the circumstances of the case, some other procedure either under the common law or pursuant to statute might not more conveniently be invoked. If another such procedure is available, resort to the procedure by way of originating motion will be inappropriate and it will be an abuse of the process to resort to it. If, as in this case, it becomes clear after the motion has been filed that the use of the procedure is no longer appropriate, steps should be taken without delay to withdraw the motion from the High Court as its continued use in such circumstances will also be an abuse.”


The Court of Appeal noted that, consistently with this...

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