Christian & Ors v. R (Pitcairn Islands) [2004] UKPC 52 (28 October 2004)

ADVANCE COPY

Stevens Raymond Christian and six others	Petitioners
v.
The Queen	Respondent

FROM

THE COURT OF APPEAL OF THE PITCAIRN ISLANDS
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REASONS FOR REPORT OF THE LORDS OF THE
JUDICIAL COMMITTEE OF THE PRIVY COUNCIL UPON A
PETITION FOR SPECIAL LEAVE TO APPEAL, OF THE
11th October 2004, Delivered the 28th October 2004
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Present at the hearing:-
Lord Hope of Craighead
Lord Rodger of Earlsferry
Baroness Hale of Richmond
[Delivered by Lord Hope of Craighead]
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1.	The petitioners are all male inhabitants of the Island of Pitcairn.  They were committed for trial on various charges brought under the Sexual Offences Act 1956, a United Kingdom Statute, as applied to the Pitcairn Islands by ordinances made under the British Settlements Acts 1887 and 1945.  The charges relate to allegations of indecent assault, of rape and of sexual intercourse with girls who at the date of the offences were incapable of giving their consent to sexual intercourse.  Some of these offences are said to have been committed many years ago.

2.	The petitioners made various pre-trial applications to the Supreme Court of the Pitcairn Islands in which they challenged the legality of the proceedings which had been brought against them, including the jurisdiction of the Supreme Court.  For the reasons given in a judgment delivered on 19 April 2004 the Supreme Court declined to make the orders sought by the petitioners and upheld the legality of the proceedings.  The petitioners appealed from this decision to the Court of Appeal of the Pitcairn Islands.  On 5 August 2004 the Court of Appeal dismissed their appeals.  It also refused an application that the proceedings should be stayed to enable the petitioners to appeal to their Lordships’ Board.  

3.	The petitioners now seek special leave to appeal to Her Majesty in Council from the judgment of the Court of Appeal.  They also seek an order staying all trials and proceedings against them pending the determination of their appeals.

4.	The respondent has lodged a written submission opposing the granting of special leave.  The granting of a stay has also been opposed on the following grounds: (i) because the trials have already started, and it would be unfair and unjust to the Pitcairn community, the complainants and the accused to further delay the trials in respect of which the entire community seek resolution and, if possible, finality, and (ii) because the petitioners will retain full rights of appeal in the event of any convictions, including ultimately an appeal to the Board.

5.	The Island of Pitcairn lies in the Pacific Ocean, midway between New Zealand and Chile.  There are four islands in the Pitcairn Group, which are widely scattered over several hundred square miles.  The only one of these islands which has any permanent population is Pitcairn.  It is two and a half miles long by one mile wide and it comprises an area of just over 1100 acres, half of which is inaccessible.  There are only about 50 inhabitants.  There is no port or harbour, and there are no facilities for any type of aircraft.  Visiting ships must anchor off the island. Ship-to-shore communications are provided by the island’s longboats.  

6.	The current state of affairs in these cases is that one of the petitioners has pleaded guilty to some of the charges which were brought against him, under reservation of his right to challenge the legality of the proceedings on the grounds set out in the petition.  In one other case the trial has been completed, but the Supreme Court has not yet delivered its verdict.  In four others the case for the prosecution has been closed, the defendants have declined to give evidence and final addresses are about to begin.  In the last case the trial has not yet begun but is expected to start within the next few days.  All the evidence for the prosecution is being taken by means of a video link from New Zealand, where the complainants now live.  A record of the evidence in this form would be available for use in the future if the proceedings were to be interrupted at this stage by a stay. 
7.	The preliminary issues which have been raised by the petitioners are complex and difficult.  They raise fundamental questions about the way justice is administered in the Island of Pitcairn.  It is plain that they are of great importance to the inhabitants of the island in general and to the petitioners in particular.  Mr Raftery for the respondent very properly did not dispute this point.  Their Lordships decided that special leave to appeal should be given.

8.	The question which remains is whether a stay of the proceedings should be ordered.  Mr Cook QC for the petitioners submitted that it would be contrary to the best interests of the petitioners and of the community in general for the Supreme Court to find them guilty of the offences with which they have been charged before the legality of the proceedings has been finally determined.  Mr Raftery on the other hand said that it was in the interests of justice and of the community in general that the trials should proceed to their conclusion, so that the question whether the petitioners were guilty or innocent of the charges could be determined as soon as possible.

9.	Their Lordships consider that the balance of advantage is that the proceedings should not be stayed.  It would not be satisfactory for trials of this importance to be interrupted, given the stage matters have now reached.  The interests of justice are best served by allowing the members of the Supreme Court to consider the evidence while it is still fresh in their minds, to proceed to a verdict in each case and, if convictions follow and the Court proceeds to  sentence, to decide what sentences should be imposed.  

10.	Their Lordships appreciate that sentences of imprisonment may cause difficulty as the island has so few inhabitants.  The longboats which provide transport to and from the island are manned by senior members of the community, most of whom are subject to the charges which have been made in these proceedings.  But Mr Raftery informed their Lordships that prison facilities have been built on the island and that the petitioners would be permitted to serve any sentences of imprisonment there if that is what they wish.  Arrangements could be made for prisoners to be released to carry out essential work in the community.  They would also have the opportunity of applying for bail pending the determination of their appeals.  A sympathetic approach will no doubt be given to such applications by the prosecutor.  It appears therefore that any difficulties which may flow from the imposition of sentences of imprisonment would not be insuperable. 
11.	There is one further point that supports the view that the proceedings should not be stayed.  In their petition for special leave the petitioners maintain that the offences with which they have been charged were never properly promulgated in the Pitcairn Islands, and that the machinery of justice that is being used to prosecute them was set up only after the decision was taken to prosecute.  Neither the Supreme Court nor the Court of Appeal has yet ruled on these issues (“the promulgation and late constitution issues”), which raise questions of fact on which no findings have yet been made.  Their Lordships were informed that it was proposed to argue these points in the Supreme Court when the closing speech in the last trial has been concluded and before it proceeds to deliver its verdicts.  Their Lordships consider that the better course would be to allow these arguments to be presented to that court, where evidence can be led and findings of fact made in the light of that evidence.

12.	It should be understood that, in granting special leave and refusing a stay, their Lordships have proceeded on the basis that any findings of fact made by the Supreme Court on the promulgation and late constitution issues will be taken into account when the Board hears the appeals.  They have also proceeded on the basis that, if convictions follow in these proceedings, the Board will proceed to hear and dispose of all the issues raised by the petitioners in their application for special leave.  This will not prevent the hearing by the Court of Appeal of the Pitcairn Islands of any appeals which may be brought by the petitioners in that court against either conviction or sentence.  But the hearing by that Court of any appeal on the promulgation and late constitution issues should be held over until Her Majesty has received the advice of the Board as to how the appeals which are now before the Board should be disposed of.