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

mercredi 27 décembre 2006, par Stephane Cottin

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.

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