Trust our jurors to do their job without prejudice
Cliff Buddle says the row over the Lamma ferry report is a reminder that we should have faith in jurors to do their job properly
Trial by jury is a cherished feature of our criminal justice system. The use of ordinary people to decide the guilt or innocence of those facing serious criminal charges acts as a safeguard against abuse and involves the public in the trial process.
Why, then, do those responsible for our justice system not place more trust in the jury? The decision to reveal only a brief summary of the 430-page government report on the 2012 Lamma ferry disaster has been justified on the grounds that to do otherwise would prejudice future criminal proceedings.
The contents of the report, which found suspected criminality and identified 17 marine department officials as being potentially guilty of misconduct, could make any subsequent trial unfair, top government lawyers have warned.
The failure to release it has understandably angered relatives of the 39 victims who lost their lives. It has also prompted former High Court judge William Waung Sik-ying to call for the report to be published in the public interest. The argument that this would jeopardise criminal proceedings "does not wash", said Waung.
The right to a fair trial must be respected. No one would want officials to walk free from court because a judge has decided publication of the report made a fair trial impossible. But this is unlikely to happen. We have, in the past, seen defendants in high-profile cases put forward such arguments and fail. They include milkshake murderer Nancy Kissel, and notorious gangster Yip Kai-foon. In both cases, the courts decided jurors would, if properly directed by the judge, be able to reach a fair verdict based only on the evidence presented to them in court.
Director of Public Prosecutions Keith Yeung Kar-hung cited the case of Malaysian Tycoon Lee Ming Tee, whose case was halted by a judge because part of a government report relating to his case had been published. The Court of Final Appeal later criticised the release of the excerpt, but still concluded a fair trial was possible. He was jailed for a year in 2004.
The legal system in Hong Kong and elsewhere in the common law world seeks to tightly restrict the information available to jurors both before and during a trial. The rationale is that jurors should not be exposed to anything which might influence them or distract them from the evidence presented in court. This was much easier to achieve in the days before the internet, and authorities around the world are grappling with how to keep the genie in the bottle.
The UK, for example, is introducing a criminal offence for jurors who conduct internet research on cases they are trying. This, at least, is preferable to other proposals put forward, which had included forcing websites to remove all articles relating to ongoing cases from their publicly accessible archives.
The practice of keeping jurors in an information vacuum has become outdated. Jurors are trusted to make the most important decision in criminal trials. We do not really know whether they reach their verdicts on the evidence or not, because their deliberations are secret. But if we support the jury system, we must believe that they are responsible and that this is what they do. The system works on trust and it is time to trust our jurors.
Cliff Buddle is the Post's editor, special projects