Justice, legality, and the rule of law : lessons from the Pitcairn prosecutions

A British colony of fifty souls in the Pacific Ocean, Pitcairn Island was settled by the Bounty mutineers and nineteen Polynesians in 1790. In 2004 six Pitcairn men were convicted of numerous offenses against girls and young women, committed over a thirty year period, in what appears to have been a culture of sexual abuse on the island. This case has raised many questions: what right did the British government have to initiate these prosecutions? Was it fair to prosecute the defendants, given that no laws had been published on the island? Indeed, what, if any, law was there on this island? This collection of essays explores the many important issues raised by the case and by the situation of a small, isolated community of this kind. It starts by looking at the background to the prosecutions, considering the dilemma that faced the British government when the abuse was uncovered, and discussing the ways in which the judges dealt with the case, as well as exploring the history of the settlement and how colonial law affects it. This background paves the way for an exploration of the philosophical, jurisprudential and ethical issues raised by the prosecutions: was it legitimate for the UK to intervene, given the absence of any common community between the UK and the Island? Was the positivist 'law on paper' approach adopted by the British government and the courts was appropriate, especially given the lack of promulgation of the laws under which the men were prosecuted? Would alternative responses such as payment of compensation to the female victims and provision of community support have been preferable? And should universal human rights claims justify the prosecutions, overriding any allegations of cultural relativism on the part of the UK? Contents 16 Foreword 6 Preface 10 Table of Cases 20 Table of Legislation, Treaties, and Conventions 22 List of Contributors 24 1. Problems on Pitcairn 26 A Thought Experiment 30 The Government and Governance of the Island 35 'Operation Unique': Investigation of Alleged Offences 38 Trials and Convictions 40 The Next Chapters 41 2. The Pitcairn Prosecutions, Paper Legal Systems, and the Rule of Law 48 Steven Raymond Christian and Others v The Queen in the Judicial Committee of the Privy Council 48 The Colonial Status of Pitcairn 49 The Machinery of Justice Points 52 Legality and the Rule of Law 53 Reflections 60 And Afterwards ... 61 3. Pitcairn's Tortured Past: A Legal History 64 The Settlement: 1790–1814 66 A savage society 66 A biblical monarchy 73 Recognition: 1814–56 76 Intervention: 1856–98 79 Settled Government: 1898–Present 81 Conclusion 86 4. Pitcairn Island Law: A Peculiar Case of the Diffusion of the Common Law 88 The History of the Sources of Law in Pitcairn 91 The law originally in force in Pitcairn 92 Legal development after the original settlement 97 The Abuse of Process Issue 107 A Concluding Comment 114 5. The Pitcairn Prosecutions: An Assessment of Their Historical Context by Reference to the Provisions of Public International Law 118 Jurisdiction: A Brief Conceptual Analysis 121 On Territorial Acquisition 131 Sovereign Title and Sovereign Obligations 144 Concluding Reflections 152 6. 'A Million Mutinies Now': Why Claims of Cultural Uniqueness Cannot be Used to Justify Violations of Basic Human Rights 156 Narrating Pitcairn 159 The alleged failure to respect the uniqueness of Pitcairn 161 The incoherence of the cultural narrative and the reality of the sexual abuse that occurred on Pitcairn 163 The distorting influence of the emphasis on Pitcairn's isolation 166 'Cultural' Arguments in Relation to Pitcairn 168 Minority group rights claims 171 'Cultural defence' claims 175 'Cultural relativism' claims 176 The Dangers of Exaggerated Respect for 'Culture' 179 Conclusion 180 7. Rights and Duties on Pitcairn Island 182 Cultural Relativism, Universality, and Blameworthiness 184 Legal Positivism and Natural Law 194 Legality and Community 201 Conclusion 207 8. Legality, Reciprocity, and the Criminal Law on Pitcairn 208 Crown Jurisdiction in Pitcairn: Community and Legal Theory 211 Mala in se 222 The importance of promulgation 224 Promulgation and ignorantia 226 Two values of promulgation and legal positivism 229 Return to Pitcairn 232 Fairness 235 The Limits of Criminal Law 239 Rights of victims 241 The value of certainty in the criminal law 243 Summary and Conclusion 244 Afterword 246 How are Islands Made? 246 Speculations 247 Comparisons 251 End 253 Appendix I: Steven Raymond Christian and Others v The Queen [2006] UKPC 47 256 Appendix II: Official Correspondence 284 (a) Paul Treadwell, Honorary Legal Adviser to the Governor of Pitcairn Island, Kerikeri, New Zealand, to CD Shute, First Secretary, British High Commission, Wellington, New Zealand, 5 January 1997 285 (b) Paul Treadwell, Honorary Legal Adviser to the Acting Governor of New Zealand, to Mrs K Wolstenholme, Acting Governor of Pitcairn, Wellington, New Zealand, 29 April 2000 286 (c) Martin Williams, Governor of Pitcairn, London, to Mrs K Wolstenholme, Deputy Governor, British High Commission, Wellington, New Zealand, 2 May 2000 288 (d) Clare Short, Secretary of State for International Development, London, to The Rt Hon Robin Cook, Secretary of State for Foreign and Commonwealth Affairs, London 289 Appendix III: Outline: Pitcairn Island Chronology 292 References 296 Index 310 A 310 B 310 C 310 D 312 E 312 F 312 G 313 H 313 I 313 J 314 K 315 L 315 M 315 N 316 O 316 P 316 R 318 S 318 T 319 U 320 V 320 W 320 A British colony of fifty souls in the Pacific Ocean, Pitcairn Island was settled by the Bounty mutineers and nineteen Polynesians in 1790. In 2004 six Pitcairn men were convicted of numerous offences against girls and young women, committed over a thirty year period, in what appears to have been a culture of sexual abuse on the island. This case has raised many questions: what right did the British government have to initiate these prosecutions? Was it fair to prosecute the defendants, given that no laws had been published on the island? Indeed, what, if any, law was there on this island? This collection of essays explores the many important issues raised by the case and by the situation of a small, isolated community of this kind. It starts by looking at the background to the prosecutions, considering the dilemma that faced the British government when the abuse was uncovered, and discussing the ways in which the judges dealt with the case, as well as exploring the history of the settlement and how colonial law affects it. This background paves the way for an exploration of the philosophical, jurisprudential, and ethical issues raised by the prosecutions: was it legitimate for the UK to intervene, given the absence of any common community between the UK and the island? Was the positivist'law on paper'approach adopted by the British government and the courts appropriate, especially given the lack of promulgation of the laws under which the men were prosecuted? Would alternative responses such as payment of compensation to the female victims and provision of community support have been preferable? And should universal human rights claims justify the prosecutions, overriding any allegations of cultural relativism on the part of the UK? Problems on Pitcairn / Dawn Oliver The Pitcairn prosecutions, paper legal systems, and the rule of law / Dawn Oliver Pitcairn's tortured past : a legal history / Andrew Lewis Pitcairn Island law : a peculiar case of the diffusion of the common law / Gordon Woodman The Pitcairn prosecutions : an assessment of their historical context by reference to the provisions of public international law / Dino Kritsiotis and A.W.B. Simpson 'A million mutinies now' : why claims of cultural uniqueness cannot be used to justify violations of basic human rights / Colm O'Cinneide Rights and duties on Pitcairn Island / George Letsas Legality, reciprocity, and the criminal law on Pitcairn / Stephen Guest.