Du libre accès à l’information juridique dans le "Pacifique"

Simon Chester sur Slaw signale dans son post Free Public Access to Legal Information ? que les autorités de l’Île de Guam, dans le Pacifique, ont décidé d’organiser un libre accès à leurs données juridiques publiques ("Guam Compiler of Laws") (ce qu’ils faisaient déjà, mais sans avoir installer de moteur de recherche, ne laissant que les données brutes).

Jusque là rien d’exceptionnel, d’autant que Paclii (le LII de la zone Pacifique) dispose du ressort de Guam.

Mais le plus remarquable dans cette affaire des antipodes est la réaction d’une attorney locale, Jacqueline Terlaje, représentante d’un éditeur privé Jurispacific, qui s’est indigné par voie de presse de cette "concurrence déloyale".

Cela fait bigrement penser à une affaire franco-française non ? http://www.precisement.org/blog/art...

Dans un tout autre registre, et pas seulement parce que c’est aussi aux Antipodes, ces événements font penser à l’affaire du viol tribal de l’Île Pitcairn dont on a déjà parlé ici rapidement Open access et accès au droit.

C’est une affaire qui mérite aussi qu’on s’y arrête un peu, car elle peut avoir des implications non négligeables, tant dans la prise en compte de l’évolution de l’accès libre au droit, que dans l’applicabilité plus ou moins directe des règles de droit en fonction de l’éloignement de la métropole.

Pour aller très vite, dans la toute petite île de Pitcairn, dernier territoire d’outre-mer britannique du Pacifique, 46 à 48 habitants, sept hommes, dont le maire, ont été condamnés pour des "viols coutumiers". Leur défense s’appuyait principalement sur le fait que la loi pénale britannique ne pouvait leur être applicable en l’espèce, car ils n’en avaient pas eu connaissance, n’ayant pas accès au droit.

Leur défense a prospéré jusqu’en appel (ils ont été évidemment déboutés), mais cet appel a fait l’objet d’un rarissime déféré devant le Conseil Privé de la Reine qui s’est penché très sérieusement sur l’affaire et a rendu un laborieux arrêt de principe sur le thème de la nécessité de l’accès au droit.

Une fiche wikipedia résume l’affaire en anglais ici http://en.wikipedia.org/wiki/Pitcai..., la partie intéressante est au chapitre "Appeals" http://en.wikipedia.org/wiki/Pitcai...

"Defence lawyers argued that as Pitcairn’s colonial rulers had never enforced British law, the six men convicted of sex crimes could not have known that their acts were illegal - a defence rejected as "extraordinary" by public prosecutor Simon Moore. If true, he said, Pitcairn had been "a zone of criminal immunity" - an enclave where serious crimes could be committed with impunity."

Quant au texte intégral de la décision du Privy Council, il s’agit de la n° 47 de l’année 2006 (datée du 30 octobre 2006) http://www.privy-council.org.uk/out...

Pour simplifier au maximum, on peut se contenter de la lecture de ces attendus :

35. In view of this, there are two questions that have to be answered positively if the convictions are to stand. They are :

a Was the Sexual Offences Act 1956 part of the law of Pitcairn at the time of the offences ? ab Were the appellants sufficiently aware of nature of the offence of rape and indecent assault charged respectively under sections 1 and 14 of the Sexual Offences Act 1956 to justify prosecuting them on the charges on which they were convicted ?

36. Mr David Perry, who represented Carlyle Terry Young, advanced an argument that the Sexual Offences Act never became part of the law of Pitcairn. This was based on article 5 (3) of the Pitcairn Order in Council 1970 that was made under the British Settlements Acts of 1887 and 1952. His argument was adopted by the other appellants.

37. Lord Hope sets out the legislative history fully in his judgment. Briefly, article 5 (1) of the Pitcairn Order 1970 (the same is true of the earlier Order of 1952) gave the Governor power to make laws for the peace, order and good government of the Island. Article 5 (3) requires laws made by the Governor to be published in such manner and in such place or places in the Island as the Governor may from time to time direct. As result of article 5 (4) a law comes into operation on the date on which it is published.

38. In the case of the Judicature Ordinance 1970 section 14 provided that "the common law, the rules of equity and the statutes of general application as in force in and for England at the commencement of this ordinance" were to be in force in the Island so far only as local circumstances permit. The earlier legislation made similar provision for the incorporation of the laws of England. Mr Perry, correctly in my view, does not dispute that an incorporation by a general reference of this nature is permissible. There was a specific offence under section 88 of the Pitcairn Ordinance of 1966 of having unlawful sexual intercourse but no legislation dealing with offences as serious as rape or indecent assault. And so, as there is nothing that would make offences set out in sections 1 and 14 of the Sexual Offences Act inappropriate to the circumstances in Pitcairn, sections 1 and 14 of the Sexual Offences Act 1956 were as a result of the general words capable of being made part of the law in force in Pitcairn at the relevant times.

39. However, Mr Perry relies on the fact that that the Act of 1956 was never published on Pitcairn so he submits sections 1 and 14 never came into force on Pitcairn. I have no hesitation in agreeing with Lord Hoffmann and Lord Hope, that Mr Perry’s submission that article 5 of the Pitcairn Order 1970 (and the 1952 Order) required all the laws of England or at least the Sexual Offences 1956 to be published on the Island before they came into force on the Island is incorrect. The proper interpretation of article 5 is that what are required to be published are the Judicature Ordinance and not all the laws of England incorporated by reference. This answer accords with the language of the Orders. In addition it is the only practical answer, if the Orders were to operate in a practical manner. The corpus of English law could not realistically be published on Pitcairn and even if it was attempted to achieve this by having, for example, all the volumes of Halsbury’s Laws and Statutes gathering dust on the island, this would not be more than a meaningless gesture and not what the Orders intended. The first of the two questions I identified above is, accordingly, answered positively.

40. The issues raised by the second question are not so straight forward. The more general argument advanced in the courts below and relied upon by Mr Perry is not a matter of interpretation. It is based on the principle that it is a requirement of almost every modern system of criminal law, that persons who are intended to be bound by a criminal statute must first be given either actual or at least constructive notice of what the law requires. This is a requirement of the rule of law, which in relation to the criminal law reflects the need for legal certainty. As the Supreme Court in its judgment of 24th May 2005 recognised (para.155) governments must ensure adequate publication or at least reasonable access to the criminal laws which they wish to enforce.

41. I have no difficulty with the generality of this freestanding argument, but in my view it has no application on the facts to the present appeals. I say this despite the fact that on the findings of the Supreme Court it is clear that the appellants were probably unaware of the terms of the Sexual Offences Act or even that there was legislation of that name or the sentences that could be imposed for those offences. They were aware, however, that their conduct was contrary to the criminal law. The community of Pitcairn may be small in numbers and isolated but it is not the appellants’ contention that rape and indecent assault was conduct which was regarded as being other than criminal on Pitcairn. Furthermore, while the precise terms of the 1956 Act had not been published on the island, the fact that there were offences such as rape and possibly indecent assault which had to be dealt with by the Supreme Court because they required greater punishment than was possible otherwise was generally known. In addition, the Supreme Court came to the conclusion (paragraph 145) that "Pitcairn Islanders have had free access to information about their laws through the Government Advisor, the Commissioner and Legal Advisor". This was because the Supreme Court was left in no doubt that "the British Administrators recognised and appreciated that because of Pitcairn’s physical isolation and small population, the law significantly affected each individual’s life and therefore dealt with even minor matters…if asked to assist. All Pitcairn Islanders had access to the law" (paragraph 147). The Court of Appeal was unimpressed by this finding (paragraph 108), but it appears to be justified by the evidence and of the greatest significance. As Lord Bridge of Harwich pointed out in this context in Grant v Borg [1982] 1 WLR 638, 646, if information is accessible, a defendant is deemed to know of it. This must be the appropriate approach. The problems of obtaining knowledge of the contents of the law in Pitcairn are not the same as those, for example in a very different society such as England but in both there are problems. The sheer volume of the law in England, much of which would be inapplicable and have no application to Pitcairn, creates real problems of access even to lawyers unless they are experts in the particular field of law in question. The criminal law can only operate on Pitcairn, as elsewhere, if the onus is firmly placed on a person, who is or ought to be on notice that conduct he is intending to embark on may contravene the criminal law, to take the action that is open to him to find out what are the provisions of that law.

42. The Supreme Court (at paragraph 96 of the judgment of 24th May 2005) correctly raised the question whether the "degree of publication" together with the other factors to which the Court referred in their judgment accords knowledge that is sufficient to alert the appellants to the fact that rape, indecent assault and incest are crimes punishable, if committed on the island, under English law. While the appellants needed to know that rape and indecent assault were contrary to the criminal law, they did not need to know of the precise provisions of sections 1 and 14 of the Sexual Offences Act 1956 which produced this result. It was sufficient that they could have obtained detailed information relating to the Act if they had wanted to do so. Obtaining that information could be a more protracted exercise on Pitcairn because of its inaccessibility, but the fact that information could be obtained suffices to make the appellants responsible for their conduct.

43. The argument on lack of publication therefore is defeated by the findings of the Supreme Court as to the knowledge of the islanders and availability of information if it was wanted. Lord Hope also regards as being critical the fact that the 1956 Act was not creating in sections 1 and 14 new offences. He is right, that rape and indecent assault were not new offences so far as English law is concerned but I am not sure why this assists. Even though the antecedents of those sections included like offences this does not alter the fact that the prosecution was based on the 1956 Act and the appellants would not be any more aware of the position under the earlier Act or at common law.

44. The absence of the required knowledge as to the criminality of their actions and inaccessibility of information could be an appropriate basis for an allegation of abuse of process. Abuse of process should however be reserved for cases where it would be an affront to justice for the person concerned to be prosecuted. To prosecute an individual for an offence of which he has no means of knowing the details is capable of being such a departure from the requirements of due process as to justify the prosecution being stayed. However, it is of the essence of an argument based on the lack of due process that the individual concerned would if the prosecution proceeded be treated unjustly and in this sense prejudiced. As in this case the appellants suffered no prejudice in view of their state of knowledge an argument based on abuse of process would not be established. It may be the case that the argument under this head could be freestanding and not based on abuse of process. However if this be so the need for prejudice would still be a requirement. The great majority of criminal offences require mens rea. If you do not know and are not put on notice that the conduct with which you are charged was criminal at the time you are alleged to have committed the offence, it can be the case that you do not have the necessary criminal intent. Whether or not this is the situation will very much depend on the facts and in this developing area of criminal law it is undesirable to generalise.

45. I would dismiss these appeals.