Court/Judicial body: Supreme Court of the Pitcairn Islands
Date: May 24, 2005 CRC
Provisions:Preamble Article 34: Sexual Exploitation
Other international provisions:European Convention on Human Rights: Articles 2, 6, 7 and 34International Covenant on Civil and Political Rights: Preamble, Article 1
Case summary
Background: Seven defendants were accused of various sexual offences, some against minors, occurring in the Pitcairn Islands, a sparsely populated overseas territory of the United Kingdom. Six of the seven defendants were found guilty, but before the convictions were entered, the accused filed a petition alleging abuse of process to stay the trials. The petition argued that criminal prosecutions under English law should not have been authorised in the Pitcairn Islands given the tenuous legal and political connections between the islands and the United Kingdom.
Issue and resolution: Sexual exploitation; application of criminal/human rights law. The Court denied the petition that the trials be stayed due to an abuse of process and upheld the defendants’ convictions.
Court reasoning: The islanders should have known that rape and other sexual offences were unlawful and that they could be prosecuted in the long-standing and legitimate court structure covering the islands. These offences are violations of accepted international human rights standards, including governments’ duty to criminalise the sexual exploitation of children under the Convention on the Rights of the Child. Excerpts Citing CRC and Other Relevant Human Rights [169] In addition, it is also apparent from the decision of the Strasbourg court in K-HW v Germany that, where an offence is committed which violates fundamental human rights protected in international law, a perpetrator may be expected to know, as an ordinary citizen, that such an offence is a violation. In this regard, we refer to the Preambles to the Universal Declaration of Human Rights 1948, the International Covenant on Civil and Political Rights 1966, ratified by the United Kingdom 20 August 1976, and the Convention on the Rights of the Child (New York, 20 December 1989; TS 44 (1992);Cm 1976), ratified 15 January 1992, which all state that- ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.’ The International Covenant on Civil and Political Rights 1966 goes on to recognise ‘that these rights derive from the inherent dignity of the human person’. [170] While none of these instruments expressly acknowledge sexual rights as human rights, nor articulate any rights protecting the sanctity of a person’s body, these resolutions do recognise a person’s right to self-determination. Article 1 of the International Covenant on Civil and Political Rights 1966 affirms this right in these terms. Article 1 of the Universal Declaration of Human Rights 1948 likewise declares that: All human beings are born free and equal in dignity and rights.’ The rights of personal dignity and autonomy are therefore considered in international law to be the primary rights to which all individuals are equally end. [171] It should also be observed that each of these three covenants contain articles protecting against arbitrary interference with a person’s privacy, family, home or correspondence, and against attacks upon a person’s honour and reputation. In addition, the Convention on the Rights of a Child includes art 34, which places an obligation on contracting states to protect the child from all forms of sexual exploitation and sexual abuse. This article, in our view, must be fundamentally designed to protect the inherent dignity and person of the child. [172] We consider that these covenants are unified in recognising the inherent dignity and autonomy of the person, and that they articulate, with respect to a person’s honour and reputation, common values that are to be protected in, and by, the international community.
Follow up: This case was subsequently appealed to the Court of Appeals of the Pitcairn Islands (decision available at http://www.paclii.org/pn/cases/PNCA/2006/1.html) and the Privy Council (decision available at http://www.bailii.org/uk/cases/UKPC/2006/47.html), both of which affirmed the application of English law and upheld the convictions.
Notes: For a detailed review of the background of the case and an analysis of what it means for human rights law in the Pacific islands, read Sue Farran’s The Case of Pitcairn: A Small Island, Many Questions, published in the Journal of South Pacific Law in 2007, available at http://www.paclii.org/journals/fJSPL/vol11no2/pdf/farran.pdf.
CRIN comments: CRIN believes that this decision is consistent with the CRC in that sexual offences against children should clearly be prohibited in every jurisdiction. In addition, international human rights conventions should apply equally in all of a State Party’s overseas territories or dependencies.
Citation: R v Christian (No 2) [2005] PNSC 1; [2005] LRC 745 (24 May 2005)
Link to full judgement: http://www.paclii.org/pn/cases/PNSC/2005/1.html