In July, the Legislative Council passed a bill that expanded the Department of Justice’s (“DOJ”) powers to appeal national security acquittals, and, if successful, to subject the defendant to a retrial. Acquittal decisions subject to these new appeal powers include those where the Court dismisses a criminal charge due to defects in the charge, or finding insufficient evidence to prosecute the defendant.

Prior to the amendment, questions of law arising during the initial High Court trial could be brought to the Court of Appeal for determination, but the defendant’s acquittal would not be affected. With the amendment, a defendant acquitted by the High Court may be immediately subjected to detention if the DOJ informs the Court of its intention to appeal. Any applications for bail pending appeal are subject to the NSL presumption against bail.

DOJ previously advertised the amendment as plugging a “loophole” by bringing the High Court’s practice in line with lower courts. It further assured the public that the amendment will not affect High Court NSL cases tried with a jury. However, these arguments are far from convincing. Appeals of acquittals and retrials are available in lower courts because jury trials are not available in lower courts, and those courts’ aptitude to try criminal cases differs from that of the High Court. Rather, this move is adding more weapons to the DOJ’s toolbox to secure NSL convictions, as well as the indefinite detention of NSL defendants.

To date, no NSL cases in the High Court have been tried with a jury and NSL cases continue to have a 100% conviction rate.

(This story originally appeared in the May-June 2023 edition of our newsletter).