Warren v The State

Constitutional redress is inappropriate, and may be an abuse of process, where an adequate remedy exists within criminal proceedings. Judicial review is a remedy of last resort; the English High Court’s permission procedure applies in Pitcairn, and permission is a legitimate control. The British Settlements Act 1887 authorises a non-representative legislature. The Bill of Rights 1688 is not entrenched. English statutes of general application, including section 160 of the Criminal Justice Act 1988, may apply in Pitcairn despite related local offences. Irregularity in obtaining evidence does not itself make it inadmissible. Exclusion turns on relevance and any unfairness caused to the trial.

Michael Warren, a Pitcairn resident, appealed against convictions for possessing child pornography contrary to section 160 of the Criminal Justice Act 1988 and possessing grossly indecent items contrary to section 8 of the Pitcairn Summary Offences Ordinance. He alleged defects in the constitutional and judicial arrangements, the absence of judicial review, the unlawfulness of the Constitution, the non-applicability of section 160, and irregularities in the search and seizure of computer material.

The Supreme Court addressed the constitutional applications and related pre-trial issues. The Court of Appeal of the Pitcairn Islands upheld the pre-trial decisions on 23 October 2015 and upheld the convictions on 6 July 2016. The central issues concerned the availability of adequate alternative remedies, the effect of section 42 of the Constitution, the applicability of English legislation, and the admissibility of the seized evidence.

Disposition. The appeal under section 25(10) of the Constitution was dismissed. Special leave to appeal on the remaining grounds was refused.

1. The Board agreed that the applications under section 25 should not have been made because any constitutional breach could have been addressed within the criminal proceedings. Section 25(3) provided an adequate alternative remedy, so the applications were an abuse of process. The Board adopted the Court of Appeal’s full reasons. It also rejected the suggestion that cumulative alleged defects created a systemic constitutional error or affected the fairness of the trial.
2. Judicial review was available in Pitcairn. Under section 42, the procedure of the High Court of Justice of England and Wales applied, including the requirement for permission. That requirement was a legitimate control. Judicial review remained a remedy of last resort and was inappropriate where the criminal proceedings supplied an equally effective remedy, particularly where the proposed grounds duplicated the constitutional challenges.
3. Section 2 of the British Settlements Act 1887 authorised the Crown in Council to establish institutions and courts and to make provisions for good government in a British settlement. It therefore permitted a non-representative legislature. The Bill of Rights 1688 was not entrenched and imposed no manner-and-form restriction on subsequent legislation. The international instruments relied upon had not been incorporated into Pitcairn domestic law, and the ECHR and First Protocol had not been extended to Pitcairn.
4. Section 160 of the Criminal Justice Act 1988, as amended, applied in Pitcairn as a statute of general application under section 42. The continued existence or re-promulgation of section 8 of the Pitcairn Summary Offences Ordinance did not displace it. The local provision had not comprehensively occupied the field of child pornography offences.
5. Even if there had been irregularity or illegality in issuing or executing the search warrant, the computer evidence would not automatically have been inadmissible. Admissibility initially depended on relevance, while exclusion depended on the extent of any unfairness caused to the trial. No argument justified exclusion, and Warren later admitted possession of the material.

1. Privy Council: The appeal was dismissed under section 25(10) of the Constitution. Special leave was refused on the grounds outside section 25.
2. Court of Appeal of the Pitcairn Islands: On 23 October 2015, the Court upheld the Supreme Court’s pre-trial decisions and dismissed the section 25 grounds. On 6 July 2016, it upheld the convictions.
3. Supreme Court of Pitcairn: Lovell-Smith J and Haines J dismissed or declined the constitutional and related pre-trial applications. Tompkins J sentenced Warren on 4 March 2016.