Last week I found myself hooked to a new podcast: The Pitcairn Trials. Produced in 2024 and released on BBC Sounds last month, the series spotlights a legal saga which coincided with my own time as an undergraduate law student. Although the trial and subsequent appeal to the Privy Council took place two decades ago, it remains a fascinating example of the challenges of colonial governance and the jurisdiction of the Crown, with the famous historical origins of Pitcairn playing a key part in both the 21st century trial and the legal dispute before the Privy Council. Such an appeal from a rudimentary legal system like Pitcairn’s also serves to illustrate the importance of key principles of the rule of law, such as promulgation (laws should be known) and congruence (between laws as stated and how they are enforced).
Pitcairn’s legal system
Pitcairn is a small island in the middle of the South Pacific with a population of roughly fifty people. Despite its tiny size and population, its historical origins are among the most the famous in the history of the world. The island was settled in 1790 by mutineers from the HMS Bounty – a story famously depicted in various films, with the lead mutineer, Fletcher Christian, played by Clark Gable, Marlon Brando, and a young Mel Gibson. Most of the present-day population of Pitcairn is directly descended from those mutineers.
The leader of the mutineers on the HMS Bounty, Fletcher Christian, has been variously portrayed in film by Clark Gable, Marlon Brando, and Mel Gibson.
Pitcairn has been regarded as a British settlement by the crown under the British Settlements Act 1887 since 1898. Today, Pitcairn is a British Overseas Territory, the Governor of which is also the British High Commissioner to New Zealand.
In the late 1990s, police officers seconded from Kent Constabulary began to uncover evidence of numerous sexual offences, including rape, over an extended period of time, committed by a significant proportion of the island’s male population. Among the accused was the Mayor of Pitcairn Steve Christian (a direct descendant of Fletcher) and Pitcairn’s former magistrate. Incarcerating such a large number of the island’s adult male population might have rendered the entire settlement unviable, so the potential consequences of the case on the community as a whole were enormous.
The Pitcairn Order in Council 1952 appointed the Governor of Fiji, then a British colony, as Governor of Pitcairn, with the power to ‘make laws for the peace, order and good government of the Islands’ in the form of ordinances. One such ordinance, the Judicature Ordinance 1961 provided that:
7. Subject to the provisions of section 8 of this Ordinance the substance of the law for the time being in force in and for England shall be in force in the Islands.
8. All the laws of England extended to the Islands by this Ordinance shall be in force therein so far only as the local circumstances and the limits of local jurisdiction permit and subject to any existing or future Ordinance and for the purpose of facilitating the application of the said laws it shall be lawful to construe the same with such formal alterations not affecting the substance as to names, localities, courts, offices, persons, moneys, penalties and otherwise as may be necessary to render the same applicable to the circumstances.
As such, it was the English Sexual Offences Act 1956 under which seven men were charged and prosecuted. Before any such prosecutions could take place, however, it became apparent that substantial reform to Pitcairn’s judicial system (which normally consisted of judgement by a single elected magistrate), which necessitated the Pitcairn Court of Appeal Order 2000 and the Pitcairn (Appeals to Privy Council) Order 2000.
In 2004, six of those seven men were convicted of most of the charges levelled. In advance of the trial, however, the accused sought to challenge the application of English law to Pitcairn. The sentences imposed on the men were, therefore, provisional, pending an appeal to the Judicial Committee of the Privy Council.
The Judicial Committee of the Privy Council
The Privy Council is formally a body of advisors to the British monarch. The Judicial Committee Act 1833 established the Judicial Committee of the Privy Council (JCPC). Historically, cases from British colonies could be appealed to the ‘King-in-Council’ (meaning the Privy Council), which effectively transferred to the JCPC following the 1833 Act.
The Judicial Committee of the Privy Council now sits at the Supreme Court building, but previously met at 9 Downing Street (right). Photo: Tom Ordelman
Formally, the judgement is rendered by the sovereign, meaning that the JCPC serves to ‘humbly advise’ whether the appeal should be allowed or dismissed. The right of appeal to the JCPC was long established, and is currently provided for by Article 10(10) of the Pitcairn Constitution under the Pitcairn Constitution Order 2010.
Christian & Ors v. The Queen (The Pitcairn Islands) [2006] UKPC 47
The six men provisionally convicted of these offences appealed to the JCPC. The grounds offered can be summarised thus:
- Pitcairn was never a British possession at all.
- Pitcairn was acquired by cession and was, therefore, not a ‘British settlement’ under the British Settlements Act 1887.
- The 1970 Ordinance was too imprecise to incorporate the 1956 Act as part of the law of Pitcairn.
- The 1956 Act could not apply because it had not been published in Pitcairn.
- The prosecution was an abuse of the process of the court.
The first two arguments concerning the 1887 Act were pithily dismissed by Lord Hoffmann, who cited the constitutional principle established in The Fagernes [1927] P 311 that what constitutes the territory of the Crown is a matter for the Crown, and that ‘any definite statement from the proper representative of the Crown as to the territory of the Crown must be treated as conclusive.’
The basis for the final argument was that the highly informal policing that existed on Pitcairn gave the inhabitants the impression that English law would not be enforced – there was no congruence between the law as stated and its enforcement. It was argued both at trial and in appeal that the island had culturally always regarded the age of consent as being 12. This was rejected by the JCPC, referring to the findings of fact of the Pitcairn Supreme Court that Pitcairn was a developed society in which rape and sexual assault were known to be criminal; that the application of English principles of justice was more than merely notional; and that law enforcement had always loomed large in the community.
The more contentious arguments, however, concerned the application of the 1956 Act to Pitcairn. Section 5(3) of the 1970 Order required that
All laws made by the Governor in exercise of the powers conferred by this Order shall be published in such manner and at such place or places in the Islands as the Governor may from time to time direct.
The appellants argued that as the 1956 Act was not subsequently published in Pitcairn it was never incorporated into Pitcairn law.
Lords Hoffmann, Woolf, and Hope all disagreed with such an interpretation, finding that the publication requirement in the 1952 and 1970 Orders applied to ordinances made by the Governor only, and not anything incorporated under them. This, according to Lord Woolf, was
the only practical answer, if the Orders were to operate in a practical manner. The corpus of English law could not realistically be published on Pitcairn and even if it was attempted to achieve this by having, for example, all the volumes of Halsbury’s Laws and Statutes gathering dust on the island, this would not be more than a meaningless gesture and not what the Orders intended.
While rejecting the formalistic requirements, the appellants did find some sympathy in Lord Hope with respect to the rule of law, opining that ‘this method of legislating in the exceptional circumstances of Pitcairn seem to me to be highly questionable.’ After all, this was a period long before the internet made it possible to access information remotely, and to travel to New Zealand to discover what the law says required a sea journey of up to two weeks each-way. Lord Hope cited Lord Diplock’s observation in Fothergill v Monarch Airlines Ltd [1981] AC 251 that, ‘elementary justice requires that the rules by which the citizen is bound should be ascertainable by reference to sources that are accessible’ – the promulgation principle.
On the basis of the incorporation of the 1956 Act, and the failure on the part of British authorities to take any steps to make the islanders aware in the most cursory terms what was being incorporated, Lord Hope would have been minded to find that the prosecution was, indeed, an abuse. However, in referring to sections 48 and 52 of the Offences against the Person Act 1861, which imposed penalties including imprisonment for up to two years for pre-existing offences including rape, indecent assault, and ‘carnal knowledge’, Lord Hope concluded that these common law offences already existed on Pitcairn:
The islanders brought the common law of England with them when they settled there. Rape and indecent assault were part of the criminal law of the island long before the Justice Ordinance 1966 and the Judicature Ordinances 1961 and 1970 were enacted. Thus, the incorporation of the 1956 Act did not create new offences, it merely placed them on a statutory footing.
At a jurisprudential level, the case presents living examples of Lon Fuller’s eight principles, especially promulgation and congruence. Some elements of the case even evoke Fuller’s Case of the Speluncean Explorers. Far too often these days jurisprudence is dismissed as abstract and irrelevant to the law in practice. The Pitcairn Island case demonstrates otherwise.
At a more practical level, the case illustrates the mixity of colonial legal systems and the challenges of legislating for, then applying the law, in such remote and disconnected communities. It also illustrates the enduring role, rightly or wrongly, of British courts in some of the world’s most far-flung places.
For law students looking for a good listen now that term has ended, give the podcast a listen, then read the Privy Council judgement – and see if you can spot the key principles discussed above.
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