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Court of Appeal of Pitcairn Islands |
IN THE COURT OF APPEAL OF THE PITCAIRN ISLANDS
CA 2/2023
[2025] PNCA 3
IN THE MATTER OF an appeal against Supreme Court decision 1/2021 [2023] PNSC 4 in respect of matters arising from a conviction in the Magistrate’s Court on 27 May 2019
BETWEEN MICHAEL CALVERT WARREN
Appellant
AND THE ATTORNEY GENERAL OF PITCAIRN
First Respondent
THE GOVERNOR OF PITCAIRN
Second Respondent
Hearing: 15 June 2025 on Pitcairn Island (via AVL)
16 June 2025 New Zealand
Coram: Young P
Dean JA
Dobson JA
Counsel: A J Ellis for Appellant
D E Kelly for First Respondent
K Raftery KC for Second Respondent
Judgment: 8 July 2025
______________________________________________________________________
JUDGMENT OF THE COURT
______________________________________________________________________
[1] This is an appeal from [2023] PNSC 4.[1] Dr Ellis originally gave notice of the appeal in general terms. The Supreme Court judgment had determined three discrete issues but the appeal was argued in respect of only one of them. That is, the Judge’s rejection of Mr Warren’s claim that the Government of Pitcairn was obliged to provide a system of legal aid for civil proceedings, and had failed to do so.
[2] At the outset of the hearing, the Court heard counsel on an application filed by Dr Ellis on Sunday, 15 June 2025 (the day before the hearing) for the President to recuse himself from the hearing of this appeal and the appeal in CA 1/2023, which had been set down for hearing together. After the Court heard counsel and had deliberated, the President declined to recuse himself and his reasons for that decision are given in his judgment.[2]
[3] On 27 May 2019, Mr Warren pleaded guilty to a charge of behaving in an indecent manner. A conviction was entered and he was fined $40 and ordered to enter into a recognisance for 12 months. Then in 2020, Mr Warren was charged with three further counts of behaving in an indecent manner in a public place. After a defended hearing, he was convicted by the Island Magistrate and fined $50 on each conviction. Unsuccessful criminal appeals have been pursued from those convictions to the Supreme Court and to this Court.
[4] Mr Warren also commenced civil proceedings arising out of the 2019 conviction, in reliance on s 25 of the Pitcairn Constitution. In essence, that provides an entitlement for any person, who considers the protective provisions in that part of the Constitution have been or are likely to be breached in relation to that person, to apply to the Supreme Court for relief. The relevant protective provisions include, in s 8 of the Constitution, the entitlement for all persons to a fair and public hearing within a reasonable time before an independent and impartial tribunal established by law.
[5] In an amended claim in these proceedings filed in September 2022, Mr Warren alleged three respects in which his s 8 rights had been breached in the 2019 criminal proceedings. The two complaints that are no longer pursued were an alleged failure to provide a right of appeal when a defendant had pleaded guilty to a criminal charge, and that a provision permitting the Island Magistrate to take legal advice breached the principle of judicial independence.
[6] The claims were heard by Haines J sitting in the Supreme Court on 11 and 12 December 2022 (Pitcairn time, being 12 and 13 December 2022 New Zealand time). The judgment was delivered on 26 May 2023.[3] On the issue that remains relevant on appeal, the claim was advanced for Mr Warren on the basis that a failure to provide a system of legal aid for civil proceedings was a failing by the Government of Pitcairn to provide access to justice and consequently breached the right under s 8 of the Constitution to a fair hearing. The argument in the Supreme Court was confined to the alleged non-availability of civil legal aid for public law challenges against the government. Dr Ellis did not seek to argue for a system of civil legal aid in relation to private law challenges between individuals and non-government corporations.
[7] There is a system for criminal legal aid to be provided in Pitcairn that is governed by ordinance. A less formal system outside the ordinance framework has been applied for the provision of legal assistance in civil proceedings. Without opposition, the Crown’s position was put before the Court in a letter provided by Mr Dunn, who is the head of the Pitcairn Islands Office. The effect of his advice to the Court was that, as summarised in the judgment:
[65] The principal points made by Mr Dunn include the following:
(a) The current adult population of the Pitcairn Islands is 28.
(b) Over the last approximately 20 years the Pitcairn government has provided financial assistance for legal advice in civil matters at times through a general People’s lawyer service and at times on request, on an as required basis.
(c) The Pitcairn government has responded to all requests with the goal of ensuring access to justice. It has always sought to make sure Islanders have access to legal support when it is required.
(d) In the 18 years Mr Dunn has worked at the Pitcairn Islands Office, no request for legal assistance has been rejected. He cannot remember any time the government has been asked for legal assistance funding and has declined to make an offer.
(e) Typically the government has offered to fund legal assistance up to NZ $2,000 to an individual party, whether or not there has been any matter filed in court.
(f) In most circumstances these offers have not been drawn on or have only been drawn on to a small degree.
[8] In the Supreme Court, Mr Warren’s complaint was considered on the basis that there was no evidence that he had requested legal aid for the conduct of the present proceedings, or any other civil proceedings he had sought to commence.
[9] As to the standard to be implied into the obligation to provide for a fair trial, both counsel urged as being highly persuasive the guide provided by the European Court of Human Rights (ECtHR) on Article 6 of the European Convention on Human Rights – Right to a Fair Trial (Civil Limb) (as updated on 31 August 2022). Haines J took from that guide that the obligation to provide fairness was for procedural rather than substantive fairness. He treated the ECtHR jurisprudence as obligating a state to provide free civil legal assistance when the interests of justice so require, despite the absence of an explicit obligation in Article 6 to do so. The issue, as reflected in European jurisprudence considered by the Supreme Court, was whether the provision of legal aid was necessary in any particular case to ensure the applicant for relief obtained a fair trial. As demonstrated by decisions such as Airey v Ireland, the obligation to provide civil legal aid will depend very much on the circumstances of a particular case and the parties to it.[4] It could not be implied that the state must provide free legal aid for every dispute relating to a civil right.
[10] The Judge’s summation on his assessment of the ECtHR jurisprudence was as follows:
[95] The ECtHR decisions also make clear states have greater latitude when dealing with civil cases and it may be permissible for conditions to be imposed on the grant of civil legal aid based on (inter alia) the financial situation of the litigant and his or her prospects of success in the proceedings. There is no obligation on the government to ensure total equality of arms between the assisted person and the opposing party, as long as each side is afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis the adversary.
[11] Dr Ellis had urged the Court to apply the principles in the Kyiv Declaration on the Right to Legal Aid (2007) which Mr Warren had annexed to an affidavit. The Judge dealt with that submission in the following terms:
[91] It is not intended to address the Kyiv Declaration on the Right to Legal Aid (2007) annexed to Mr Warren’s affidavit. It is explicitly confined to “best practices” from Africa, Asia and Eastern Europe. It provides nothing of assistance to a court required to take into account the rich and developed jurisprudence of the European Court of Human Rights. The document is in truth a declaration of aspiration by (primarily) human rights advocates from outside Europe and has little relevance in the present context.
[12] The Judge was satisfied that application of rules of common law would provide the same outcome as adopting the guidance from the European jurisprudence.[5]
[13] Turning to the specific claim by Mr Warren, the Judge was satisfied that, in the absence of evidence of a request for civil legal aid that had been turned down, Mr Warren could not present a claim that any informal arrangements for provision of legal aid were insufficient to meet his reasonable requirements. The Judge’s conclusion was that Mr Warren could not establish a failure by the government to provide a system of civil legal aid.
[14] The appeal for Mr Warren proceeded on the basis that he had not made any request to be granted legal aid for his civil proceedings. Dr Ellis argued that he should not have to beg for money and that without defined criteria he would have to make such a request without knowing the criteria against which it would be assessed. In oral submissions, he added that when the government was being sued, it ought to appreciate the need for legal aid, and volunteer it.
[15] Dr Ellis placed substantial reliance on a decision of the Supreme Court of the British Indian Ocean Territory, delivered by the Hon James Lewis KC, the Chief Justice of that jurisdiction (the BIOT decision).[6] Dr Ellis submitted that in the present case, the Judge had “turned a blind eye” to this decision. The hearing of the present case occurred on 12 and 13 December 2022. The judgment in the BIOT case was delivered on 5 May 2023. Dr Ellis filed a short memorandum dated 8 May 2023 attaching the judgment and describing it as a matter of importance on the access to the Court and legal aid, stating that the Court “will be aided by considering the judgment”. The Judge issued a minute on 9 May 2023 acknowledging receipt of the judgment, noting the absence of opposition from the Crown to it being received, and stating that it would be taken into account in preparation of the judgment. There was no reference to the BIOT judgment in the judgment now under appeal.
[16] However, we are not persuaded that a failure to address the BIOT decision led the Judge into error. The facts in the BIOT case are clearly distinguishable from the present case, and serve to illustrate why the present claim is misconceived without Mr Warren having made an unsuccessful request for civil legal aid. Without that, he cannot provide the factual context for criticism of alleged inadequacies in the arrangements for the provision of a fair hearing for civil litigation in Pitcairn.
[17] In the BIOT case, the claimants were 10 of a larger group of Sri Lankan asylum seekers who claimed to be attempting to reach Canada when their vessel fell into distress and they were escorted into Diego Garcia, the main island in the BIOT. The Commissioner for BIOT made a removal order for their return to Sri Lanka and the claimants sought declaratory relief and orders quashing the removal decisions.
[18] They were all impecunious, without resources and unable to speak English, so had no ability to deal with the legal situation they were in. Requests for legal aid were met with the Commissioner contending that there was no system for legal aid in the BIOT; that entirely new administrative machinery would need to be created and for that reason the administration would not accede to their request for funding. The relevant claims sought to determine whether the Commissioner had power to grant legal aid in appropriate cases (not the substantive issue of whether grants should be made to these claimants).
[19] The claimants submitted that the obligation to operate a system for legal aid in the BIOT arose on two alternative bases. First, that the United Kingdom statute, the Legal Aid Sentencing and Punishing of Offenders Act 2012 (LASPO) applied in BIOT. Secondly, that the claimants had a common law right to funding for legal representation in their application for judicial review. The Commissioner contested both of these propositions.
[20] Consideration in the judgment of the first alternative began with the following:
21. The question of whether LASPO is part of the Law of the BIOT will be determined by the Courts Ordinance which reads in material part:
Section 3 (1) Subject to and so far as it is not inconsistent with any specific law for the time being in force in the Territory, and subject to subsections (3) and (4) of this section and to section 4, the law to be applied as part of the law of the Territory shall be the law of England as from time to time in force in England and the rules of equity as from time to time applied in England:
Provided that the said law of England shall apply in the Territory only so far as it is applicable and suitable to local circumstances, and shall be construed with such modifications, adaptations, qualifications and exceptions as local circumstances render necessary.
(2) In this section specific law means –
(a) any provision made by or under a law (including this Ordinance) made in pursuance of section 11 of the British Indian Ocean Territory Order 1965, section 9 of the British Indian Ocean Territory Order 1976, section 10 of the British Indian Ocean Territory (Constitution) Order 2004, or any similar section superseding the last mentioned section;
(b) any provision of an Act of Parliament of the United Kingdom which of its own force or by virtue of an Order in Council or other instrument made thereunder applies to or extends to the Territory;
(c) any statutory instrument (as defined in the Statutory Instruments Act 1946) or prerogative Order in Council which applies to or extends to the Territory.
Section 4 (1) The Commissioner may declare that any United Kingdom enactment, statutory instrument or prerogative Order in Council, other than a provision referred to in section 3(2)(b) or (c), does or does not form part of the law of the Territory.
[21] Chief Justice Lewis reasoned that LASPO was a part of the law applying in BIOT. The reasoning on this issue included the following paragraphs which Dr Ellis relied upon as applying to Pitcairn:[7]
- I agree with the Claimants who submit that while obviously on a much smaller scale the mischief that LASPO remedies is the same mischief that exists in BIOT. Having a full civil and criminal justice system comes with responsibilities and the BIOT government cannot shrink from those responsibilities when they arise. On the evidence it appears they will only arise rarely.
- It is difficult to see how HMG of the BIOT does not have these same responsibilities, at least in principle, as HMG of the United Kingdom. In R (GR) v Director of Legal Aid Casework [2021] 1 WLR 1483, para.57, Pepperall J. said LASPO gives effect to the “state’s obligation to provide fair and effective access to justice”.
- There cannot be any concept of ‘lesser justice’ in the BIOT. The Courts have recognised that, without legal aid, some individuals would be denied fair and effective access to justice. In R (Gudanaviciene) v Director of Legal Aid Casework [2014] EWCA Civ 1622; [2015] 1 WLR 2247, the Court of Appeal held that some individuals would be unable to access justice without legal aid, e.g. because of the complexity of the legal issues (paras.90, 135, 172). I agree with the Claimants that the same applies in the BIOT. The need for a system of legal aid for those who would otherwise be unable to access justice is the same.
...
[22] On the alternative basis for the claims, the Chief Justice cited recent United Kingdom authorities on the need in certain circumstances for civil legal aid to be provided in order to prevent there being an obstacle to the fundamental right of access to justice.[8]
[23] On the basis of those recent authorities, the Chief Justice concluded:
- It is therefore clear that at common law there is a right to practical and effective access to justice, and where fairness demands it, the common law requires that a person be represented and legal aid provided as necessary. This applies in the BIOT.
[24] The important distinction between the situation in the BIOT and that in Pitcairn is that the Commissioner in the former territory was denying the existence of any system to provide legal aid in any cases.[9] In contrast, there have been arrangements in Pitcairn which have proved adequate in all known circumstances to pay for legal costs in civil litigation with no examples of requests being declined.
[25] The claimants in the BIOT case had been refused legal aid on the ground that no system existed to consider their requests. In contrast, Mr Warren did not make any request for legal aid in circumstances where there was no evidence of previous requests for civil legal aid being declined.
[26] This distinction is important. Contrary to the effect of some of Dr Ellis’s submissions, the Crown is not obliged to have a formalised system of legal aid including any particular features. Rather, it is to have sufficient arrangements in place to provide for legal aid where necessary to ensure that all litigants have reasonable access to justice and can receive a procedurally fair hearing. The paragraphs from the BIOT judgment quoted at [21] above cannot apply where the issue is not whether there ought to be some arrangements to facilitate civil legal aid in appropriate cases, but, as in the case of Pitcairn, where there is an abstract criticism of existing arrangements for civil legal aid.
[27] Dr Ellis attempted to distinguish the evidence of previous practice by arguing that Mr Warren’s position was unprecedented in that he was challenging the government, and that the government would be likely to find reasons for denying him aid in order to frustrate his claims against it. We are satisfied that there is no justification for that contention. A submission that present arrangements are inadequate cannot succeed given the evidence that informal arrangements have enabled aid in all civil cases where a request has been made. Without making a request that was declined or granted to an allegedly inadequate extent, Mr Warren cannot make out a claim that the government’s arrangements to provide legal aid have caused it to breach its obligation to ensure litigants are able to procure a fair hearing.
[28] In a somewhat related submission, Dr Ellis criticised the Judge for making purportedly irrelevant reference to grants of legal aid in other cases:[10]
[62] Mention must also be made of the extensive legal aid-funded litigation which accompanied the Operation Unique prosecutions.
[29] However, as Mr Raftery KC pointed out for the Governor, the Operation Unique litigation included a number of constitutional issues and the Judge was entitled to take judicial notice of the arrangements for legal aid in those cases as illustrative of the adequacy of existing arrangements to meet the needs of Pitcairn’s small community. In any event, there can be no suggestion that the Judge’s reference to the extensive legal aid-funded litigation in those unrelated cases was determinative in his decision. Properly understood, it was no more than a contextual reference as to how existing arrangements for legal aid have worked.
[30] Dr Ellis also criticised Haines J for not having regard to the 2007 Kyiv Declaration on the Right to Legal Aid, contending that its rejection gave the appearance of uncomfortable elements of elitism and racism.[11] The text of that declaration had been placed before the Court as an annexure to an affidavit completed by Mr Warren. In submissions for the Governor, Mr Raftery advised that it had not been referred to in written submissions before the Supreme Court.
[31] The Judge was entitled to characterise the declaration as aspirational. It could not have any binding effect on the issue and whether any persuasive weight might be given to it was a matter for the Judge’s discretion. No error was committed in his decision to disregard it.
[32] Dr Ellis could not refer to any authority that requires a government to have in place a formal system for considering applications for civil legal aid that contain any particular features. Both parties adverted to the guide on Article 6 of the European Convention on Human Rights addressing the right to a fair trial (civil limb). That guide is explicit in stating that there is no implication that a state must provide free legal aid for every dispute relating to a civil right, there being a clear distinction between the obligations to provide legal aid in criminal proceedings and those in civil proceedings.[12] Rather, the issue in any particular case is whether the adequacy of provision for civil legal aid is sufficient to discharge the state’s obligation to ensure access to justice in a procedurally fair hearing.
[33] Haines J found that Mr Warren could not show any unfairness in his 2019 criminal proceedings or in any of the civil proceedings in which he has been involved.[13] In the appeal, Mr Warren did not claim that he had been denied a fair hearing or access to justice, or that he had suffered any specific harm as a result of the alleged failure of a system to enable him to claim legal aid.
[34] Although not pressed, the respondents’ submissions raised the point that the scope of s 25 of the Constitution requires an applicant for relief to make out that the protective rights in the constitution have been or are likely to have been breached in relation to that person. Conceptually at least, there is an issue as to whether the abstracted circumstances of Mr Warren’s complaint, which was pursued as a matter of principle, in fact qualified the proceedings for hearing under s 25 of the Constitution when there was no breach of his relevant rights. Given the course of the argument and the clear terms of our decision on appeal, it is unnecessary to traverse this point.
[35] In the respondents’ written submissions, there was advice that consideration is being given to the adequacy of the legal aid scheme for Pitcairn and whether a legislated legal aid scheme might be required to address the needs of a population of approximately 30 residents. In oral submissions, Mr Raftery updated that submission to confirm that the consideration of the issue is ongoing, with the process of consultation being underway.
[36] That administrative process cannot be taken as any acknowledgement of a deficiency in the arrangements that have applied thus far. Rather, it shows an awareness of the need to keep the adequacy of such arrangements under review.
[37] For all the foregoing reasons, we are satisfied that the appeal cannot succeed. The respondents did not indicate that they would seek costs in the event that the appeal failed.
________________________
Justice Young
President
________________________
Justice Dean
________________________
Justice Dobson
[1] Warren v Attorney General & Anor [2023] PNSC 4.
[2] Warren v Attorney General & Anor [2025] PNCA 1.
[3] Warren v Attorney General & Anor, above n 1.
[4] Airey v Ireland, ECtHR, 9 October 1979, Series A No 32, at [20] to [26].
[5] Warren v Attorney General & Anor, above n 1, at [96] to [98].
[6] R (on the application of VT and others) v The Commissioner for BIOT BIOT SC/No 3/2023 and BIOT SC/No 4/2023, 5 May 2023.
[7] R (on the application of VT and others) v The Commissioner for BIOT, above n 6.
[8] R (Howard League for Penal Reform) v Lord Chancellor [2017] EWCA Civ 244; [2017] 4 WLR 92; R (SPM) v Secretary of State for the Home Department [2022] 4 WLR 92; R (GR) v Director of Legal Aid Casework [2021] 1 WLR 1483.
[9] There was an exception for limited funding for legal assistance for persons whilst in Police custody.
[10] Warren v Attorney General & Anor, above n 1, at [62].
[11] The relevant paragraph of the judgment, [91], is quoted at [11] above.
[12] The August 2022 version of the guide, 33 and 34.
[13] Warren v The Attorney General & Anor, above n 1, at [109].
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