Pitcairn sex offenders stay free while lawyers argue

Did Pitcairners know it was wrong to rape children? That was the question exercising some of New Zealand's finest legal brains during this week's court challenge in Auckland by six islanders convicted of sex offences last year.

At the high-profile trials that ended in October, four of the men were given jail sentences, to be served in the new prison they helped to build on the remote Pacific island. But none has yet spent a day behind bars. They have remained at liberty, living with their families and doing public work such as crewing the Pitcairn longboats.

That curious state of limbo could end if the Pitcairn Supreme Court rejects their claim that they were unaware of English law prohibiting serious sexual offences.

If the ruling - due on May 13 - goes against them, Crown prosecutors will demand that bail be withdrawn. But if the three judges find in their favour, the verdicts will be overturned, and the pending trials of six more men, mainly Pitcairners now living in Australia and New Zealand, will not go ahead.

The legal challenge, which was heard in Papakura, cast a spotlight on the way that the British overseas territory was administered by its colonial rulers in decades past.

Defence lawyers argued that the island was neglected on every level: economically, legally and administratively. They pointed out that Pitcairn never had an independent police officer, the magistrate had no legal training and the local court could handle only minor offences.

The Crown, meanwhile, produced hundreds of old documents in an effort to demonstrate that Pitcairners knew serious crimes would be prosecuted by a higher court constituted by the British. The records included transcripts of cases in the 1950s in which men were put on trial for carnal knowledge of under-age girls.

The court also scrutinised recent Foreign Office papers showing the political soul-searching that followed allegations of widespread sex abuse over decades.

Overseas Development Minister Clare Short wrote in 2001 that "we need to face up to the reality that the Pitcairn community is probably so socially dysfunctional that we should cease to plan to support and sustain it". Instead, she suggested, Britain should consider "supporting resettlement [of the islanders] alongside psychological help and counselling for those who need it".

For the judges, the core issue remains whether English law was properly "promulgated" on the island, or whether it was "common sense", as prosecutors argued, that rape was illegal.

But even if they find against the men, they will not necessarily go to jail. It may decide to grant bail pending an appeal to the Privy Council contesting whether Pitcairn was ever really British.