Grenville Cross says Britain’s justice secretary should not ditch tried and tested legal system
Since the 19th century, trial by jury has been an established feature of Hong Kong’s legal system. It has sustained its rule of law and placed it firmly within the common law tradition. It has also contributed to Hong Kong’s high ranking in the 2025 World Justice Project’s Rule of Law Index (24th out of the 143 jurisdictions surveyed).
If a defendant faces grave offenses, including murder and manslaughter, a jury trial is mandatory. It is also required if a substantial sentence beyond the lower courts’ jurisdiction is expected upon conviction. The principle of trial by jury is as old as modern Hong Kong.
When, therefore, the National People’s Congress enacted the Hong Kong Basic Law in 1990, it recognized the significance of trial by jury to the city’s legal system. The Basic Law stipulates “The principle of trial by jury previously practiced in Hong Kong shall be maintained” (Art.86). Although the United Kingdom introduced the jury system into Hong Kong, it lacks any parallel provision of its own to protect the system of jury trials in Britain itself, which is now having unfortunate consequences.
It is true that when the Hong Kong SAR National Security Law (NSL) was enacted in 2020, provision was made for national security trials to be tried, in limited circumstances, by three-judge panels rather than juries. However, although this was portrayed in the West as an assault on the rule of law, it can only occur in three situations: If it is considered necessary to protect the personal safety of jurors and their family members, or to protect State secrets, or to counter the involvement in the case of “foreign factors”, the secretary for justice has discretion to issue a certificate indicating the case will be tried by a three-judge panel rather than a jury (Art.46). If this discretion were to be exercised in bad faith, it would be amenable to judicial review (which has never happened).
However, this limitation on jury trials applies only in cases where the country’s safety is (or may be) at stake and has no broader implications. Other serious crimes, including murder, rape and robbery, can only be tried by juries. Nonetheless, the use of three-judge panels has been portrayed by the foreign press as an assault on individual rights, which could not be further from the truth. Indeed, Hong Kong’s fellow common law jurisdictions, including Australia, Ireland and the UK, also restrict jury trials where the public interest so requires (national security, jury tampering, organized crime, etc.). This, however, has not given the commentariat pause for thought, let alone deterred it.
On Dec 19, 2023, for example, the BBC World’s senior editor, Frances Mao, when referring to the national security trial of the Apple Daily founder, Jimmy Lai Chee-ying, claimed he was being denied “the right to a jury”, which highlighted her ignorance. In Hong Kong, as in the UK, a defendant has no right to a jury trial. Indeed, as The Times reported just last month, the justice secretary, David Lammy, had written to ministers and civil servants advising there was “no right” to a jury trial in the UK.
Although, moreover, Lai was charged with collusion with foreign powers to endanger national security and seditious activity, Mao reported that he was “ushered into a Hong Kong courtroom to stand trial for treason”, which was untrue (and must have surprised Lai). Crass misstatements of this type epitomize the quality of much of the foreign media’s reportage of Hong Kong’s situation.
Not to be outdone, Human Rights Watch, which also has a blind spot when it comes to Hong Kong, weighed in with some inaccuracies of its own (Dec 13, 2022). It alleged Lai’s trial was “seriously flawed by violations of his fair trial rights”, citing his “non-jury trial”. Like the BBC, it was unaware that fair trials are possible without juries — and are, for example, the norm in the civil law jurisdictions of the European Union.
Be that as it may, one of the doughtiest defenders of the principle of trial by jury, which was formalized by England’s Magna Carta of 1215, was thought to be the UK’s new justice secretary, David Lammy (he assumed office on Sept 5, after a lacklustre 14 months as foreign secretary). On June 20, 2020, for example, during the COVID-19 pandemic, he said, “Jury trials are a fundamental part of our democratic settlement”. To ram the point home, he added, “Criminal trials without juries are a bad idea”.
Indeed, when David Cameron was prime minister, he commissioned Lammy, then a Labour Party backbench parliamentarian, to review prejudice in the criminal justice system. When he reported in 2017, Lammy concluded that juries remained “fit for purpose”, and “act as a filter for prejudice”. Jury trials, the report found, were the only part of the justice system that was “consistently free” from racial bias.
Everybody, therefore, was dumbfounded when the media reported, after an internal justice ministry document was leaked on Nov 26, that Lammy had proposed abolishing juries for all except the most serious cases. They would, for example, be ended for fraud and financial offenses deemed too complex or time-consuming, and would only be retained in cases involving rape, murder, manslaughter and the public interest. It would no longer be open to defendants to elect for trial by jury in most “either way” cases (cases in which a defendant can choose to be tried by a jury or a single judge).
Instead, a “Crown Court Bench Division” would be created to handle cases with sentences of up to five years’ imprisonment, and judges sitting alone would henceforth try thousands of serious crimes previously tried by juries. Lammy also planned to double magistrates’ sentencing powers from one year to two, meaning more trials would be held in courts without juries.
The document, circulated in government circles last month, sought to justify denying trial by jury to thousands of people because the 70 Crown Courts in England and Wales were facing record backlogs. There were over 78,000 cases in the pipeline, with some hearings listed as far ahead as 2029 or even 2030. The document claimed the changes were designed to “improve timeliness of the Crown Court through extra hearing time”, and “did not compromise the right to a fair trial”.
Once it had caught its breath, the legal community reacted with fury to the proposals. The Criminal Bar Association’s chair, Riel Karmy-Jones KC, said they would “destroy a criminal justice system that has been the pride of this country for centuries”. The backlog was not caused by juries but by what she called “the systematic underfunding and neglect that has been perpetrated by this government and its predecessors”.
Whereas the Law Society’s president, Mark Evans, condemned an “extreme measure” that “goes too far”, the Bar Council insisted there was “no need to curtail the right to a trial by jury — from both a principle and practical position”.
The political world shared the outrage of the legal professionals. The Conservative Party leader, Kemi Badenoch, denounced “a short-term decision that risks fairness, undermines public trust, and erodes the very foundation of our justice system”. And the Liberal Democrat justice spokesman, Jess Brown-Fuller, described Lammy’s plans as “completely disgraceful”, and accused him of “dismantling our justice system and failing victims in the process”.
Even Tesla’s Elon Musk was incensed, accusing the British government of “turning Britain into a prison island”, although it was unlikely Lammy was listening.
There is always a danger that once the jury system is undermined, it may have unintended consequences. If, as Lammy proposes, its use is minimized, there will be some who argue that it might as well be scrapped altogether — as has happened in some territories formerly under British control. In Singapore, for example, jury trials were abolished in 1969, with Malaysia following suit in 1995. If Lammy gets his way, this could also be the shape of things to come in Britain.
The UK has been called “the cradle of the law”, and its jury system is emulated throughout the common law world. It is, therefore, tragic to see its juries being threatened for reasons that lack credibility. It is, moreover, unfortunate that the principle of trial by jury is not constitutionally protected in Britain as it is in Hong Kong. In consequence, when an iconoclast like Lammy comes along with a wrecking ball, there is little to safeguard a revered institution that has served the country so well for so long.
By contrast, the talk around the role of juries in Hong Kong legal circles invariably centers on strengthening the system and extending them to the lower courts.
Although Lammy’s proposals are still being considered by other ministers, the early signs are worrying. For example, the prime minister’s chief secretary, Darren Jones, vigorously defended them (Nov 26). He said, “You don’t want to get clogged up in a system that takes years for justice or your innocence to be proved”. In other words, it was perfectly acceptable to throw the baby out with the bathwater.
Despite the furore, the justice ministry, according to the Daily Telegraph, has discounted suggestions that Lammy might water down his proposals (Nov 27). A final decision is expected later this month, with legislation following in the New Year.
However, it is not too late for Lammy to step back from the abyss. Before doing anything drastic, he should look at how other common law jurisdictions have successfully coped with backlogs and managed difficulties. In that process, Hong Kong’s unflagging commitment to the principle of trial by jury is a shining example that should inform his deliberations. Like Hong Kong, the UK should cherish its juries and keep faith with a system that is tried and tested and enjoys public confidence.
The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.
The views do not necessarily reflect those of China Daily.
