Yesterday I published a post that provided some background information on Pitcairn Island: the mutiny on board the HMS Bounty led by Fletcher Christian on April 28, 1789; the settlement of Pitcairn (and subsequent emigration to Norfolk Island); William Bligh’s long trip home to England; and the court-martials of some of the mutineers that decided not to follow Fletcher Christian into the unknown.
In this second installment I discuss some of the interesting features of the criminal trials of several Bounty-mutineer descendants that took place in the 2000s. At the end of this post I also provide information on some of the awesome resources about the mutiny and Pitcairn available here in the Library of Congress and in other places around the world, including links to digitized books and articles.
Jumping ahead about 150 years…
At the closing of the 20th century there remained less than fifty people on Pitcairn. Following complaints made by some former Pitcairn residents about incidents that had taken place on the island, the isolated community found itself embroiled in a scandal and subsequent legal actions against seven men (about half of the male population of the island) relating to the sexual abuse of young girls. One journalist who covered the events has described the proceedings as “one of the most unusual trials in British criminal history.”
The investigations and trials involved law enforcement officials from New Zealand and the UK. Charges (which included some that dated back to the 1960s) were brought under British law but, pursuant to a formal agreement between NZ and the UK and implementing legislation passed in NZ in 2002, the cases were heard by NZ judges who were appointed to the Pitcairn Supreme Court and Court of Appeal. Legislation had previously been passed, particularly in 2000, by the Pitcairn government (which actually has its administrative offices in Auckland, NZ) and the UK government to establish the different levels of courts, appeal processes, and various procedural rules. Parts of the proceedings, including all of the Court of Appeal hearings, were conducted in Auckland with video links set up with Pitcairn.
The proceedings followed a relatively complicated path due to challenges and appeals relating to dismissing or suspending the trials or seeking to have the convictions overturned. The timeline of the case included the following:
- The Supreme Court issued a decision (SC 1) on April 19, 2004, in which it rejected an application to dismiss the charges.
- The Supreme Court’s decision was appealed to the Court of Appeal, which heard substantive arguments before dismissing the appeal in a decision (CA 1) issued on August 5, 2004.
- The trial therefore continued in the Supreme Court, which announced the conviction and sentencing of six of the seven defendants in October 2004. Details were set out in the Supreme Court’s judgment (SC 2) of May 24, 2005, in which the judges also rejected an abuse of process challenge.
- A subsequent appeal to the Court of Appeal failed, with a judgment (CA 2) issued on March 2, 2006, confirming the convictions. By this time the accused had already obtained special leave to appeal to the Judicial Committee of the Privy Council, but had not been granted a stay in the proceedings.
- On October 30, 2006, the Privy Council issued its judgment (PC) in which it rejected the appeal.
The sentences for the six men ranged from community service to between two and six years’ imprisonment. The judges noted the unique circumstances of the Pitcairn community and the role of the men in its survival. Following the failure of the various appeals, those convicted to imprisonment served their sentences in a new prison on the island that some of them had helped build. The cost of the prison, as well as all trial costs (including defense and prosecution), were paid for by the UK government (see article 24 of the UK-NZ agreement referred to above).
As indicated by the progression of the trials and appeals, the prosecutions gave rise to many questions and challenges, including human rights-related claims and core constitutional and even international law questions. The Public Defender appointed for the accused challenged the jurisdiction and sovereignty of the British Crown with regard to Pitcairn, and the applicability of British laws to the Pitcairn islanders (specifically the Sexual Offences Act 1956 (UK)). The three courts were therefore called on to examine the full legal and constitutional history of this unique, and tiny, jurisdiction.
The decisions are also interesting as they set out some historical events and cultural and societal aspects of the island. In the pre-trial proceedings, the Supreme Court was presented with a collection of “copied official and file documents sourced from various Government and private archives in the United Kingdom.” This included “the original of the Pitcairn Register (a diary of the years kept by community leaders on Pitcairn between 1790 and 1854) courtesy of the National Maritime Museum, Greenwich, handwritten reports of Royal Navy captains, civil servants and colonial officers, law officers of the Crown and Lords Commissioners of the Admiralty, petitions and correspondence of residents of and visitors to the Island, to legislative and gazetted instruments of the Crown.” (SC 1 para. 13.)
The legal arguments and judgments of the different courts were of course detailed and complex. The following is a summary of some of the key points raised and determined by the courts.
Loss of British citizenship
In the pre-trial proceedings before the Supreme Court, the Public Defender contended that the nine Pitcairn settlers on the Bounty lost their British citizenship ship by breaking their compact with the Sovereign as a result of committing the crimes of piracy and mutiny as well as the treasonable offense of burning a British naval ship (an offense punishable by death under the Naval Dockyards Act 12 Geo III c. 24). (SC 1 para. 24.) Furthermore, it was argued that even if the settlers were citizens, their children were born out of wedlock outside of the realms of Great Britain and under law would have taken the citizenship of their Tahitian mothers. (SC 1 para. 35.) The Court held that the mutineers “were and remained British subjects until their respective deaths” and considered it unnecessary to rule on the illegitimacy argument due to its finding that the island was a British settlement. (SC 1 paras. 33 & 36.)
First laws of Pitcairn
A visiting naval captain drew up a Constitution and Code of Laws in 1838 at the request of the Pitcairn islanders, and his actions were subsequently approved by the Admiralty. (The Constitution and Laws were subsequently revised in 1893 and 1904, with a new Constitution recently enacted in 2010.) The 1838 document included a requirement for the Pitcairn Magistrate to swear an oath of loyalty to the Queen. After considering these and other historical documents, the Court concluded that it saw “in the occupation of the Island by British subjects, the adoption of local laws with final accountability to visiting Royal Navy captains, the attention given by Her Majesty’s ships, and the frequent expressions of loyalty, the factual basis for our view that up to 1856 Pitcairn was a British settlement and a possession of the British Crown.” (SC 1 para. 55)
Emigration to Norfolk Island
The Public Defender then argued that “if Pitcairn was indeed a British settlement prior to 1856, it ceased to be so once the Islanders left for Norfolk Island, as there was no subsequent “act of settlement” upon their return by which Britain could once again bring Pitcairn within her jurisdiction.” (SC 1 para. 58.) The judges considered the difference between authorized and private settlement by British subjects, as well as the impact under international law of a hiatus in administration and settlement. They agreed with the Prosecutor that the people who returned to Pitcairn a few years after the emigration did so as British subjects. (SC 1 para. 72.)
Application of British Settlements Act
The legal arguments primarily centered on whether Pitcairn was a settlement under the British Settlements Act 1887, Orders in Council made under that Act in 1893 and 1897, and amendments to the Act made in 1945. The judges summarized that, under the 1887 Act,
a British possession must be one which was not acquired by cession or conquest. (Counsel were agreed that the Island was taken neither by cession or conquest.) It must be outside the United Kingdom, and must not be under the jurisdiction of the Legislature of any British possession. If these criteria are met, the Sovereign has acquired a British settlement in terms of the 1887 Act. Her Majesty in Council may make laws and constitute courts as may appear to be necessary for the peace, order and good government of her subjects, as well as others living in the settlement. (SC 1, para. 83.)
The judges concluded that the 1887 Act “opened the way to draw Pitcairn into the legal and governmental framework of the British Crown, Pitcairn already being a British settlement or possession.” (SC 1 para. 94.)
Pitcairn Orders and application of UK Sexual Offences Act
The Supreme Court also ruled on the application to Pitcairn of the Foreign Jurisdiction Act 1890 (finding it didn’t apply, SC 1 para. 107); the Pacific Order in Council 1893 that was made under the British Settlements Act 1887 (finding it had been extended to Pitcairn in 1898 and 1903 by Instructions issued by the Secretary of State for the Colonies, SC 1 para. 109 and 110); and the Pitcairn Orders in Council 1952 and 1970 (finding these to be “acts of State in their own right” (SC 1 para. 138) and that ordinances passed under these Orders have the force of law (SC 1 para. 150).)
Citing a “pathway” of provisions in the various Judicature Ordinances, the Court held that the Sexual Offences Act 1956 (UK) was in force in Pitcairn during the relevant periods, so that “except for where Pitcairn law expressly provides for offences, or provides otherwise, or the local circumstances provide otherwise, the Act applies to the present charges.” (SC 1 para. 211.)
Court of Appeal ruling
The Court of Appeal also addressed the question of sovereignty and jurisdiction in its 2004 decision. It agreed with the Supreme Court that “Pitcairn was a British possession acquired by settlement.” (CA 1 para. 53.) In fact, it went on to state that “we find it impossible to conclude other than Pitcairn Island was a British settlement within the meaning of the 1887 Act when the Orders in Council of 1952 and 1970 were made. To contend that Pitcairn Island is independent, that it is not a British possession, and that the United Kingdom does not have sovereignty over it, is palpably unreal. Sovereignty was acquired by settlement or occupation and that sovereignty pertains today.” (CA 1 para. 55.)
Privy Council ruling on abuse of process claims
In 2006, the Privy Council applied the same reasoning as the Court of Appeal in holding that the Sexual Offences Act 1956 applied to Pitcairn. (PC para. 17). It also ruled on the abuse of process claims that had been dismissed by the lower courts. These claims related primarily to the fact that the Sexual Offences Act 1956 had not been published or promulgated on Pitcairn and “the rudimentary policing of the inhabitants gave the impression that English law would not be enforced” (PC para. 18); the delay between the bringing of charges and the indictments due to the need for a diplomatic agreement and legislative actions to provide a venue for the trials (PC para. 25); and inequality of arms arising from the legislation being passed after the men had been charged, the appointment of judges from NZ rather than the UK, and the appointment of a Public Defender some time after the appointment of a public prosecutor (PC para. 26).
In dismissing these claims, each court, including the Privy Council, essentially found that even if the men were not aware of the precise contents of the Sexual Offences Act or the possible sentences, they did know that their conduct was contrary to criminal law. On the remaining claims, the courts found that the defendants had received a fair trial. In fact, the Privy Council stated that “[i]t is hard to take any of these points seriously. There is no dispute that the new legislation made the trial and appeal process fair. There is no suggestion of any lack of competence on the part of the judges or a restriction on the Governor’s power of appointment on grounds of nationality. And there is no dispute that the Public Defender had all the time he required to prepare the defences.” (PC para. 26.)
The Lords of the Privy Council noted the extremely unusual and difficult nature of the case. Lord Hope of Craighead, for example, stated that “[t]he circumstances which gave rise to these prosecutions are highly unusual – almost certainly unique in the Board’s experience. They raise some fundamental issues about the rule of law in remote communities and about the responsibilities of the colonial power which seeks to exert its authority over them.” (PC para. 47.)
An abundance of resources
The proceedings described above and all of the surrounding circumstances of course attracted a great deal of attention around the world; just as the mutiny on the Bounty had two centuries earlier. Below I set out a selection of the vast number of resources available related to the history of Pitcairn and the Bounty, including the mutiny itself, the court-martials of the mutineers, materials about the island and the islanders, and the more recent trials.
As there are far too many items to list here, I’ve also provided links to online resources and Library of Congress catalog search results for the different subjects.
Bounty mutiny and court-martials
- A voyage to the South sea, undertaken by command of His Majesty, for the purpose of conveying the bread-fruit tree to the West Indies, in His Majesty’s ship the Bounty, commanded by Lieutenant William Bligh. Including an account of the mutiny on board the said ship, and the subsequent voyage of part of the crew, in the ship’s boat, from Tofoa, one of the Friendly islands, to Timor, a Dutch settlement in the East Indies… (1792);
- William Bligh, A Narrative Of The Mutiny, On Board His Majesty’s Ship Bounty; And The Subsequent Voyage Of Part Of The Crew, In The Ship’s Boat;
- J. Murray, The Eventful History of the Mutiny and Piratical Seizure of H.M.S. Bounty: Its Causes and Consequences (1831) (also here);
- Rosalind Amelia Young, Mutiny of the Bounty and Story of Pitcairn Island 1790-1894 (1894).
- Awake, bold Bligh!: William Bligh’s letters describing the mutiny on HMS Bounty (Paul Brunton ed., 1989);
- William Bligh, Mutiny on the Bounty (Vercelli : White Star, 2006) (also includes minutes of the proceedings of the court-martial of the mutineers);
- Letters from Mr. Fletcher Christian, containing a narrative of the transactions on board His Majesty’s ship Bounty, before and after the mutiny, with his subsequent voyages and travels in South America (1796);
- The court-martial of the “Bounty” mutineers (1931);
- John McArthur, A treatise of the principles and practice of naval courts-martial, with an appendix, containing original papers and documents illustrative of the text, opinions of counsel upon remarkable cases, the forms preparatory to trial, and proceedings of the court to judgment and execution (1792) (and John McArthur, Principles and practice of naval and military courts martial, with an appendix, illustrative of the subject (1806)).
- T.B. Boyles, Pitcairn, the island, the people, and the pastor: with a short account of the mutiny of the Bounty (1853);
- Lady Belcher, The mutineers of the Bounty and their descendants in Pitcairn and Norfolk Islands (1871);
- John Barrow, A description of Pitcairn’s island and its inhabitants: With an authentic account of the mutiny of the ship Bounty, and of the subsequent fortunes of the mutineers (1900);
- Michael O. Eshleman, The New Pitcairn Islands Constitution: Strong, Empty Words for Britain’s Smallest Colony, 24(1) Pace Int’l L. R. (2012).
The National Library of Australia website provides access to a huge amount of digitized resources related to Pitcairn Island. The National Library of New Zealand also has several relevant pictures as well as newspaper cartoons.
- Pitcairn’s Island and the islanders, in 1850 / by Walter Brodie, together with extracts from his private journal and a few hints upon California ; also, the reports of all the commanders of H.M. ships that have touched at the above island since 1800 (1980 reprint of the 3rd ed., 1851);
- T.B. Murray, The home of the mutineers (1852);
- Laws of Pitcairn, Henderson, Ducie and Oeno Islands (1971)
- Harry L. Shapiro, The heritage of the Bounty: the story of Pitcairn through six generations (1979);
- Glynn Christian, Fragile paradise (1999);
- Maurice Allward, Pitcairn Island: refuge of the Bounty mutineers (2000).
- Sir Ian Barker QC, The Pitcairn Trials Saga – Justice in Britain’s Smallest Colony (lecture delivered at Cambridge University, 2006) (video);
- Sue Farran, The “Re-Colonising” of Pitcairn, 38(3) VUW L. Rev. 435 (2007);
- Sue Farran, The Case of Pitcairn: Small Island, Many Questions, 11(2) J. Sth. Pac. L. (2007);
- Helen Power, Pitcairn Island: Sexual Offending, Cultural Difference and Ignorance of the Law, Crim. L. Rev. 609 (2007);
- Fran Wright, Certainty and Ascertainability of Criminal Law After the Pitcairn Trials, 39(4) VUW L. Rev. 659 (2008);
- Lisa Fletcher, Reading the News: Pitcairn Island at the Beginning of the 21st Century, 3(1) Island Studies J. (2008);
- Anthony Trenwith, The Empire Strikes Back: Human Rights and the Pitcairn Proceedings, 7(3) J. Sth. Pac. L. (2009);
- Sarah Gollan, Justice Served, Justice Gained? A Procedural Critique of the Pitcairn Island Sexual Offending Trials (thesis abstract only);
- Stephen Guest, Legality, Reciprocity and the Criminal Law on Pitcairn in Justice, Legality, and the Rule of Law: Lessons from the Pitcairn Prosecutions (D. Oliver ed., 2009);
- Stephen Allen, The Pitcairn Prosecutions and the Rule of Law, 75(6) Mod. L. R. (2012).
Items in the Library of Congress: