Editor’s note: The following are remarks by Grenville Cross SC at a legal forum held on May 28, 2022.
I am grateful to the Secretary for Justice for inviting me to participate in today’s forum, and I propose to share with you my thoughts on how the jury system operates in National Security Law trials, and to make some comparisons with other jurisdictions, both civil and common law in nature.
Setting the scene
In 2010, 10 years before the advent of the National Security Law for Hong Kong (NSL), the Hong Kong Court of Final Appeal (Appeal Committee) explained that, in the words of Chief Justice Andrew Li Kwok-nang, “it is clear that there is no right to trial by jury in Hong Kong”.
Although the Basic Law provides that “the principle of trial by jury previously practiced in Hong Kong shall be maintained” (Art.86), the NSL recognizes that, insofar as national security cases are concerned, a jury trial may not be in the interests of justice. Although a jury trial is certainly not excluded, circumstances can arise where an alternative means of achieving justice is necessary, and it does not impinge upon the fairness of the trial. Where, therefore, the Secretary for Justice issues a certificate directing that the accused be tried without a jury on the “grounds of, among others, the protection of State secrets, involvement of foreign factors in the case, and the protection of personal safety of jurors and their family members”, the case shall be tried in “the Court of First Instance without a jury by a panel of three judges” (Art.46).
Although three factors are specifically highlighted as justifying a three-judge trial, the phrase “among others” is noteworthy, and has attracted little, if any, comment. It is, presumably, a catch-all provision, and it suggests that the three criteria are not exhaustive, and that there may be other circumstances that justify a non-jury trial. Although it is not easy to envisage what they might be, they could perhaps arise if, for example, the Secretary for Justice concludes that jurors and their relations will face dangers unrelated to their physical safety, such as blackmail or other types of intimidation, or where attempts to interfere with witnesses are anticipated. In all likelihood, therefore, the “other grounds” are likely to concern matters that affect the integrity of the trial, although they will likely be very rare.
Secretary for Justice’s certificate
After the Secretary for Justice has issued the certificate, that is normally the end of the matter. Once the Secretary concludes, for example, that the jurors or their family members are under threat, there is a real risk that a fair trial by jury is no longer possible, and the only realistic remedy is a non-jury trial by a three-judge panel. As the Court of Appeal has explained in Tong Ying-kit’s case, the Secretary’s decision is a prosecutorial decision within the ambit of the Basic Law, which stipulates that the Department of Justice “shall control criminal prosecutions, free from any interference (Art.63).
The Court of Appeal was also at pains to emphasize that the jury trial is not the only means of achieving justice in the Court of First Instance, and that the bulk of criminal cases are tried by judicial officers sitting alone in the District Court and the Magistrates Court. Indeed, in light of that, it would have been perfectly consistent with the practice in the lower trial courts for the drafters of the NSL to have decided that national security trials in the Court of First Instance would also be tried by a single judge, and nobody could seriously have complained. However, in their wisdom, and undoubtedly to allay concerns, the drafters decided that if a national security case was not going to be tried by seven jurors then a three-judge panel was the preferred alternative, presumably reasoning that, as with the Court of Appeal, “three heads are better than one”.
Be that as it may, the Secretary’s decision to issue a certificate is, like other prosecutorial decisions, amenable to judicial review. As the Court of Appeal has explained, the Basic Law’s Article 63 protection against interference is directed at interference of a political nature, and, although judicial interference with a prosecution decision is precluded, this is subject to “issues of abuse of the court’s process, and, possibly, judicial review of decisions taken in bad faith”. What this means, therefore, is that, although the judicial review of a decision to issue a certificate is exceptional, it is nonetheless only possible in limited circumstances, as where it can be shown it was taken in bad faith, or it resulted from an unlawful prosecution policy, or was otherwise perverse. Even if a judicial review succeeded, its only consequence would be to require the Secretary to re-consider the need to issue a certificate, and not to direct that there be a jury trial, although a jury trial in those circumstances might certainly be a possibility.
Human rights protections
It is important to stress that, irrespective, of whether a national security trial in the Court of First Instance is tried by a jury or a three-judge panel, the accused enjoys exactly the same rights to a fair trial, for two main reasons, one in the Basic Law, the other in the NSL.
By virtue, firstly, of the Basic Law (Art.39), the International Covenant on Civil and Political Rights (ICCPR) remains in force in Hong Kong, and this, domesticated as it has been through the Hong Kong Bill of Rights Ordinance (Cap.383), protects the fundamental criminal justice guarantees to which an accused person is entitled. It also stipulates that somebody who has been lawfully arrested “shall have the right to a fair trial by the judicial organs without delay and shall be presumed innocent until convicted by the judicial organs” (Art.87).
Although, therefore, the Basic Law is very clear in terms of the protections it upholds, the NSL, secondly, goes out of its way to place the fundamental rights of criminal suspects at the front and centre of its operation. It not only stipulates that “human rights shall be respected and protected in safeguarding national security” and that the ICCPR’s provisions “shall be protected” (Art.4), but requires that “the principle of the rule of law shall be adhered to” (Art.5), with such things as legal certainty, the presumption of innocence and the right of defence being singled out for especial mention.
Quite simply, therefore, Hong Kong’s criminal justice system is human rights heavy, with fundamental protections being repeatedly stated, and this provides a context for the consideration of national security trials in other jurisdictions.
The Far East
As Hong Kong has been criticized by some countries for making provision for trials by a three-judge panel in certain limited circumstances, it is instructive to briefly consider what role juries have to play in three other former British colonies in this part of the world.
In Singapore, the legal system is also based on the common law legal system of England. Trials, however, whether involving national security or other types of crime, are conducted by a single judge, with trial by jury having been abolished in 1969. The country also retains the death penalty, and the authorities can deploy preventive detention of up to two years, which may be renewed, for suspects in cases involving the country’s security. Judicial review of decisions taken under the Internal Security Act are only possible to ensure procedural compliance, and Singapore is not a party to the ICCPR.
In Malaysia, the legal system is predominantly based on the English common law, although there are also secondary legal systems affecting particular legal areas, such as Islamic Law and Customary Law. As in Singapore, trials, whether involving national security or other types of crime, are conducted by a single judge, with trial by jury having been abolished in 1995. Provision is also made for the preventive detention of suspects and for the denial of bail to those charged with national security offences. The death penalty still exists, and the country is not a party to the ICCPR.
In Brunei Darussalam, the legal system is based largely on the English common law, and there is also a Syariah court that deals with Islamic Law. Trials, of whatever type, are conducted by single judges without juries, and the courts can impose the death penalty. As with Singapore and Malaysia, the country is not a party to the ICCPR.
It is, therefore, intriguing to note that, although some people in the United Kingdom, together with some of its global partners, are only too happy to single out for criticism one former British colony, Hong Kong, for having limited the right to trial by jury in national security cases only, they have nothing to say about three other former British colonies in the Far East, which do not have jury trials for any type of offence, whether involving national security or otherwise. Were I not the charitable observer I am, I might have been tempted to describe this as hypocritical, and to conclude that their concerns have been fabricated in order to embarrass China, but please do draw your own conclusions.
Enough, however, of former British colonies, and let us now turn to the United Kingdom itself.
The United Kingdom
In the UK, the Supreme Court has taken the view, in the Dennis Hutchings case, that, although there is a right to a jury trial, it is not absolute, and it may be constrained in particular circumstances by express legislation. It explained that if a trial by jury would place the fairness of the criminal justice process at risk, the right to a jury trial “must yield to the imperative of ensuring that the trial is fair”. If there is a trial by a single judge, “all that has changed is the constitution of the tribunal”, and the fairness of the trial is unaffected. Quite clearly, there has to be fairness to all sides, and the requirements of a fair trial are not determined by the defendant’s interests exclusively, and it is in everybody’s interests that serious criminal offences are not only thoroughly investigated but also properly tried.
Against this background, it has been recognized by the UK that there cannot be a fair trial if the jury is corrupted. After all, said the Court of Appeal of England and Wales, “verdicts by a jury which has been nobbled cannot represent true verdicts”. In 2003, therefore, the UK enacted the Criminal Justice Act, which enables a trial to be conducted without a jury if the judge is satisfied that a “real and present danger” exists of jury tampering occurring, and that, even after steps are taken to neutralize the threat, the likelihood of it occurring would be “so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury”. Even in the absence of concrete intelligence that jury tampering is contemplated in a particular case, evidence that a defendant has previously been involved in any such activity would suffice, as also would evidence that he had tried on an earlier occasion to interfere with a witness.
In 2021, at the same time as Tong Ying-kit was making history by becoming the first defendant to be tried on national security charges in Hong Kong by a three-judge panel, a former British soldier, Dennis Hutchings, aged 80, was facing trial for far graver offences by a single judge in a non-jury trial in Northern Ireland, although this was largely ignored by those international commentators who took such great interest in Tong’s situation. He was accused, at Belfast Crown Court, of attempted murder and causing grievous bodily harm, arising out of a fatal shooting during the “Troubles” in Northern Ireland, in 1974. However, he died suddenly of a heart attack, and the trial was aborted, but his experience is illuminating.
In Northern Ireland, there is a long history of sectarianism that has sometimes spilled over into terrorist activity, and it is sometimes necessary to dispense with juries, and this is still possible under the Justice and Security (Northern Ireland) Act 2007 (“the Act”). When this happens, the trials are conducted by one judge only, and not by three as in Hong Kong. These non-jury courts are known as “Diplock courts”, after Lord Diplock, the judge who first recommended them, and they handle particular offences. They were first introduced in 1973, and, at their peak, over 300 trials a year were being held without a jury. The Director of Public Prosecutions for Northern Ireland (DPP) can, if he considers there is a risk of jurors being intimidated, certify that a trial on indictment should be tried by a single judge, as he did with Hutchings.
In 2017, for example, the DPP issued 22 certificates for a non-jury trial. The DPP, however, can only issue a certificate requiring a defendant to be tried without a jury if he fears the administration of justice might be impaired by a jury trial and he suspects that one of four criteria specified in the Act is met. Three of these conditions involve proscribed organizations, meaning terrorists, while the fourth is that the offence was “committed to any extent (whether directly or indirectly) as a result of, or in connection with or in response to religious or political hostility of one person or group of persons towards another”.
At the time, the British government explained that condition 4 was needed having regard to recent sectarian rioting, and prosecutors might not be able to prove that a defendant involved in such violence belonged to a proscribed organization. After the DPP had issued a certificate preventing Dennis Hutchings from being tried by a jury, he explained his suspicion that the offences the former soldier was facing had been committed “in connection with or in response to the political hostility of members (or suspected members) of the Provisional IRA towards those who believe Northern Ireland should remain a part of the United Kingdom”.
Like Tong Ying-kit, Hutchings was aggrieved by being denied a jury trial, but, when he appealed to the UK Supreme Court, he also got nowhere. As Lord Kerr explained, it was not to be assumed that trial by jury was the “the unique means of achieving justice in the criminal process”, and that a jury trial “can in certain circumstances be antithetical to a fair trial”. When those circumstances arose, the only assured means of “ensuring that the trial is fair is that it is conducted by a judge sitting without a jury”.
In 2015, when the Judicial Committee of the Privy Council considered the issue of non-jury trials, in a case arising from the Turks and Caicos Islands, Lord Hughes said “An order for trial by judge alone can be made where the interests of justice require it, just as in England it can only be made where it is necessary”. It should be noted here that precisely the same considerations apply in Hong Kong under the National Security Law, and a trial by judge alone can only be directed where this is justifiable in the interests of justice, and even then only in cases where national security is involved.
Australia and New Zealand
Although the Australian Constitution provides for the trial on indictment of any offence against any law of the Commonwealth to be by jury, a trial by judge alone is permissible in some circumstances in various of the country’s constituent States.
In New South Wales, a trial without a jury has been possible since 1986, but only if the accused person agrees. If the prosecutor disagrees, a trial by judge can be ordered if deemed in the interests of justice. If, however, substantial interference with jurors is anticipated, and the risk cannot be mitigated by other means, a jury trial may be dispensed with. In Victoria, since 2009, a trial without a jury is also possible, provided the accused person agrees and the court considers it is in the interests of justice. In Western Australia, since 2004, a jury trial can only be replaced with a trial by a judge alone if the accused person consents, and it is considered to be in the interests of justice. In Queensland, since 2008, a trial by judge alone, in lieu of a jury trial, has been possible if it is in the interests of justice, or because of the case’s length and complexity, or because the trial is likely to be unreasonably burdensome for a jury, or because of the risk of jury intimidation, or because a significant risk exists of pre-trial publicity affecting the jury’s deliberations, and the accused person cannot exercise any veto power.
In New Zealand, there have been concerns over jury tampering, and this has resulted in legislation that mirrors the United Kingdom’s. The Criminal Procedure Act 2011 enables the court, upon the prosecutor’s application, to order that a defendant be tried by a judge alone without a jury if there are reasonable grounds for believing that that intimidation of potential jurors has occurred or may occur, and that the effects of that intimidation can only be effectively avoided by so ordering. Intimidation apart, the Act also enables a judge to order that a trial be conducted by a single judge rather than a jury if it is likely to be lengthy and complicated.
Republic of Ireland
At this point, having already examined Northern Ireland, it is instructive to turn to the Republic of Ireland, not least because some of its provisions in relation to the conduct of national security trials are strikingly similar to those now operating in Hong Kong.
In Ireland, the right to trial by jury is granted by the Irish Constitution (Art.38.4), although it is not absolute. The Constitution allows the Parliament (Dail) to establish “special courts” with wide powers when the “ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order” (Art.38.3). In 1972, shortly after what were known as “the troubles” erupted in Northern Ireland, the Special Criminal Court (SCC) was created, to handle terrorism-related crimes, invariably involving the Provisional Irish Republican Army (“the Provos”).
If a case is tried by the SCC, there is no jury, and the defendant, as in Hong Kong, is tried by a three-judge panel. It is up to the Director of Public Prosecutions to decide if a case should be tried by the SCC, and he is not required to provide reasons for selecting this venue. His decision is final, and cannot be challenged, save, perhaps, on the ground of bad faith, which is virtually impossible to show.
Even though “the troubles” in Northern Ireland formally concluded with the “Good Friday Agreement” of 1998, and the declaration of a ceasefire by the Provos, the SCC has remained in operation ever since. Not only that, its remit has been expanded, and it now handles not only cases that threaten State security, but also those that endanger the administration of justice, as where jurors face intimidation. The SCC is also used nowadays to try cases involving serious and organized crime, which, of course, is way beyond anything that is possible in Hong Kong.
By way of example, in 2013, a gang leader from Limerick, John Dundon, was convicted by the SCC of the murder of a rugby player, Shane Geoghegan, whom he had mistakenly identified as a rival, and he was sentenced to life imprisonment. Again, after the murder of an investigative journalist, Veronica Guerin, in 1999, the members of a narcotics gang were tried for her murder in the SCC. Cases of this sort must be tried by a jury in Hong Kong, where restrictions on jury trials in the Court of First Instance are strictly limited, and can only occur in national security cases.
It is, I suggest, extraordinary that the Western countries that have so much to say about the use of three-judge panels in national security cases in Hong Kong, have nothing to say about the use of three-judge panels in general crime cases in Ireland, and, again, the double-standards are startling.
Europe & European Court of Human Rights
Although various trial models exist in continental Europe, Greece’s may be highlighted. It was the first country to develop the jury trial, and it still retains it in a distinctive form. By virtue of the Greek Constitution and the Code of Criminal Procedure, felonies are tried by a “mixed court” that consists of three professional judges and four lay judges, who determine the facts and the appropriate penalty. However, some serious felonies, including terrorism, are not tried by a “mixed court”, but by the judges of the three-judge Court of Appeal, at first instance, and by the 5-judge Court of Appeal, at second instance, and this approach has passed muster.
In 2003, for example, members of the “Revolutionary Organization November 17”, a far-left urban guerrilla grouping, were judged by the Greek Court of Appeal, the reason being that the felonies of terrorism and organized crime fall within the jurisdiction of the Court of Appeal, and not the “mixed court”. As in the Republic of Ireland, therefore, the jury trial can be dispensed with in not only in national security cases but also in serious crime cases, and this, therefore, goes way beyond anything that is permissible in Hong Kong. Nobody, and certainly not those who whip themselves up into a frenzy over Hong Kong’s arrangements, appears to have got particularly upset by this, presumably because European jurisprudence has no problems with the denial of jury trials.
Although the European Convention on Human Rights (ECHR) guarantees the right to a fair trial (Article 6), the European Court of Human Rights has indicated that a State enjoys considerable freedom in choosing the means of ensuring this. The Court has also explained that, while Article 6 of the ECHR provides the right to a fair trial, it “does not specify trial by jury as one of the elements of a fair trial hearing in the determination of a criminal charge”. In other words, the Court has made clear that “there is no right under Article 6.1 of the Convention to be tried before a jury”. What this means, therefore, is that, when there is an appeal, the Court’s function is confined to a consideration of whether the system adopted at the trial has contributed to an outcome that is compatible with the ECHR, and in determining fairness its focus is not on the mode of trial itself.
By any yardstick, Tong Ying-kit’s trial was a groundbreaker for local jurisprudence. On the one hand, it established that, while prosecutorial independence is constitutionally protected, the issuing of a certificate is nonetheless judicially reviewable if there is any mala fides. On the other, it showed that the judicial system is capable of adapting itself to new situations, while still upholding the most basic principle of criminal justice, the right to a fair trial.
All in all, therefore, Tong’s trial was a positive experience, with the rule of law being the big winner. Whereas serious national security offences were successfully tried, potential jurors were protected from possible harm, and a panel of experienced judges ensured that the accused person was fairly treated throughout the proceedings. Those who predicted disaster if trials on indictment were not tried by juries could not have been more wrong, and the legal system has been enriched by the experience.
As we have seen, the restrictions that can be placed on jury trials in national security cases are limited, and are by no means automatic. They are measured, reasonable and justifiable, and far more conservative than those available in many other jurisdictions. Despite this, the restrictions have attracted huge foreign interest, invariably hostile, but manifestly hypocritical. It has often emanated from countries that place far more limitations on the availability of trial by jury than is possible in Hong Kong, and they inevitably bring to mind the proverb that “those who live in glass houses should not throw stones”.
In reality, the National Security Law has not only saved Hong Kong from ruin, but also provided legal mechanisms for the trying of cases that are practical, realistic and, above all, fair.
Grenville Cross is a senior counsel and professor of law, and was previously the director of public prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of China Daily.