Criticism of activists’ non-jury national security trial is unjustified

Hong Kong’s legislation is hardly unique. Jurisdictions such as the UK, New Zealand and Greece allow non-jury trials where necessary. Even the European Court of Human Rights holds that there is no right to a jury trial, though it is focused on the fairness of trials.

After the 47 suspects charged with subversion in relation to an unofficial primary election in 2020 were committed to the High Court for trial, it was revealed that the case would not be tried by a jury. This was after Secretary for Justice Paul Lam Ting-kwok issued a certificate on August 13, indicating that the forthcoming trial will be conducted by a three-judge panel.

As contemplated by the national security law (Article 46), he decided, after a risk assessment, that a jury trial would be inexpedient with regard to the “involvement of foreign factors”, concern over the “personal safety of jurors and their family members”, and the risk of perverting the course of justice if the trial was conducted with a jury.

Once Lam concluded that those factors were or might be present, his duty was clear, and the integrity of the trial required prioritisation. Although it would have been irresponsible to disregard those dangers, his decision could be challenged by judicial review if shown to have been taken in bad faith.

This, however, did not pacify the critics. Whereas, for example, the UK-based Hong Kong Watch said the defendants were being “denied even the basic right of a trial by jury”, the US-based Human Rights Watch said the decision would “deprive defendants of their fair trial rights”.

They are, however, presumably unaware that the Hong Kong Court of Final Appeal previously decided that there is no such thing as a right to a jury trial in Hong Kong, and that the Court of Appeal has explained that a jury trial is not the only means of achieving justice in the Court of First Instance.

After all, most defendants are tried without a jury in the District Court and the Magistrates’ Courts, and this has never aroused concerns over the fairness of their trials.

Hong Kong’s legislation, moreover, is by no means unique. In England and Wales, for example, the Criminal Justice Act of 2003 allows a trial to be conducted by a judge alone if it is decided there is a “real and present danger” of jury tampering, and that, once steps are taken to neutralise the threat, the likelihood of it arising would be “so substantial … as to make it necessary in the interests of justice for the trial to be conducted without a jury”.

In Northern Ireland, single-judge trials were introduced in 1973 for terrorism-related cases and, at one time, over 300 such trials were held a year.

Although restrictions were introduced by the Justice and Security (Northern Ireland) Act 2007, the director of public prosecutions can still certify that an indictable offence should be tried by a single judge if a risk exists of jurors being intimidated and, for example, 22 certificates for non-jury trials were issued in 2017.

In 2015, when the Judicial Committee of Britain’s Privy Council considered an appeal from the Turks and Caicos Islands, Lord Hughes said: “An order for trial by judge alone can be made only where the interests of justice require it, just as in England it can be made only where it is necessary.”

The same considerations apply in Hong Kong, and a non-jury trial is only ordered where the interests of justice so require, in cases of national security.

In Ireland, juries can also be dispensed with, and the constitution allows parliament 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”. In 1972, after the Troubles erupted in Northern Ireland, the Special Criminal Court (SCC) was created to handle terrorism-related crime.

When 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. However, even though the Troubles ended with the Good Friday Agreement of 1998, the SCC has not only continued to operate, but also expanded its jurisdiction.

It now handles not only national security cases, but also cases where jurors face intimidation, and cases involving serious and organised crime. Quite clearly, this goes way beyond anything possible under Hong Kong’s national security legislation.

In New Zealand, the Criminal Procedure Act of 2011 enables a court to order that a defendant be tried by a judge alone if there are reasonable grounds for believing that intimidation of potential jurors has occurred or may occur.

The act also entitles a judge to order a single-judge trial if a case is likely to be lengthy and complicated, which, again, is not permissible in Hong Kong.

In Australia, a judge-alone trial is also now permissible in states like New South Wales and Victoria.

In Greece, by virtue of the constitution and the Code of Criminal Procedure, felonies are tried by a “mixed” court that comprises three professional judges and four lay judges. However, some serious felonies, including terrorism, are tried by the three-judge Court of Appeal, without the lay judges, and this approach has been sanctioned by the European Court of Human Rights (ECHR).

Although the European Convention on Human Rights guarantees the right to a fair trial, the ECHR has decided that states have considerable leeway in deciding how to ensure it. It holds that there is no right to a jury trial, and that the focus should ultimately be on whether the trial, however conducted, was fair.

Although non-jury trials are common in many other jurisdictions, they attract scant attention from those who so eagerly criticise Hong Kong. The city’s jury trial restrictions are both reasonable and limited, and ensure that cases are not corrupted. This, whatever the critics may claim, is in the public interest.