Speech by Minister for Foreign Affairs and Law, K Shanmugam, at the Criminal Law Conference 2014
The Honourable the Chief Justice
The Right Honourable Lady Justice Rafferty
The Honourable Judge Brian Barker QC
The Honourable Attorney General
Distinguished speakers and panellists
1. A very good morning to all of you. Thank you for inviting me to this conference.
2. Pleased to be with all of you here today.
3. This morning, I would like to share a few thoughts on the basic principles which: (1) lie at the heart of our criminal justice system: (2) how these principles have underpinned some of the reforms in criminal justice that has taken place in the last few years; and (3) how it will continue to inform some of the changes that we are thinking of.
A. INTRODUCTION: FOUR FUNDAMENTAL PRINCIPLES OF CRIMINAL JUSTICE
4. A sound criminal justice system is the bedrock of a safe and orderly society - where the streets are safe, where everyone, including women and children are able to go out, at any time of the day or night, without fear for personal safety.
5. Our approach thus has been to consider, (1) The effectiveness of our laws in upholding law and order and (2) fairness in the criminal process and procedures.
6. And our criminal justice system is anchored by four fundamental principles: (1) the laws and criminal process must protect society from crime and uphold law and order; (2) due process and the rule of law must be observed and sentences must be commensurate with the culpability of the offender and seriousness of the offence. (3) our enforcement agencies must be empowered to discharge their duties; and (4) quite importantly, offenders must be given the opportunity to be rehabilitated and reintegrated into society.
7. Over the last few years we have made a number of changes, within the framework of these 4 principles and reforms have been undertaken in the following areas: (1) Early intervention for young people at risk; (2) strengthening the path to justice; (3) building more robust court processes; and (4) sentencing and reintegration of offenders into society.
8. These reforms have led to concrete results by strengthening the entire criminal justice framework. Some of the changes were perceived to be major by the profession, by the Bar, while others may not have caught much attention.
9. However, I think this is an opportune time to look at all the changes over the last few years collectively, because seen together, they represent a decisive change in the system.
10. And I hope to do that – run through them briefly so that we get the larger perspective on what the changes really mean and what we hope to do in the near future in that context.
11. Let me start with early intervention for youth, young people.
B. EARLY INTERVENTION FOR YOUTHS
12. Our studies and research internally have shown that there is a very strong correlation between dropping out from school and subsequent commission of criminal offences, almost a 60 per cent likelihood.
13. As a result we decided that it made a lot of sense to try and prevent people from getting into trouble in the first place – through early intervention programmes which target young people who are either getting out of school or at risk of dropping school.
14. The Ministry of Home Affairs has started a slew of such programmes targeted at such young people and SMS Masagos was tasked to chair an Inter-Ministerial Committee which will seek to tackle this issue head on.
15. In the interests of time, I will not go into details of this important initiative but mention it as a marker. And I mention this approach to underscore the point that maintaining a good criminal justice system and maintaining law and order cannot start and end with investigation, trial process and the prisons.
16. We have to take a broader approach and look at the entire, sequence and chain of events leading to the commission of offences – and deal with every aspect and post-the person coming out of prison, to make sure he doesn’t offend again.
17. That is the test, to me, of a successful system.
18. Next let me talk about strengthening the path to justice.
C. STRENGTHENING THE PATH TO JUSTICE
19. Procedurally we have moved towards greater openness between Prosecution and Defence with the case discovery system, and more assistance to accused persons who turn up without lawyers.
20. The Criminal Procedure Code reforms in 2010 introduced criminal discovery, which is a formalised framework obliging Prosecution and defence to exchange relevant information about their respective cases before trial starts.
21. As former Chief Justice Chan Sek Keong observed, under this new regime, the element of surprise at trial is reduced and the playing field for both prosecution and defence is levelled.
22. This process marked a new era in our system.
(1) Reforming the law of evidence
23. In 2012, we enhanced the court’s discretion to consider relevant evidence by widening the admissibility of computer output evidence, hearsay evidence, opinion evidence. Chief Justice has talked about some of them.
24. We also widened legal professional privilege to cover in-house counsel and we repealed an out-dated rule on evidence of character in rape cases
25. The general tenor of the reforms was to ensure that our laws kept pace with technology and changes in society.
26. Next, we decided to look at more assistance to unrepresented accused persons and some changes have been made,
(2) Strengthening access to justice for unrepresented accused
27. In 2012, Subordinate Courts established the Community Justice Centre to help unrepresented accused persons through provision of information on procedures in criminal cases and referral services to the Law Society and legal clinics.
28. The Supreme Court’s Legal Assistance Scheme for Capital Offences (‘LASCO’) provides free legal representation for accused persons facing a capital charge.
29. And presently more senior counsel are encouraged to participate in that scheme.
30. We are also considering allowing lawyers to help accused persons as a Mackenzie friend, where an accused person chooses not to use a LASCO lawyer.
31. The Ministry of Law has recently announced, just a few weeks ago, significant changes to Criminal Legal Aid that will improve access to justice.
32. To date, the Government has not directly funded criminal legal aid but has supported it indirectly through support to the Law Society for the operation of its pro bono criminal legal aid efforts.
33. The plan now is to fund and establish four tiers of assistance which will range from providing accused persons with basic legal advice, to full representation in court.
34. This will address the need to ensure that there are sufficient lawyers servicing the needs of the community and help accused persons.
35. It is a very significant shift in the Government’s philosophy.
36. At the same time, I personally do not want to get into a situation where we fund it to an extent where, like in some countries now, they have cut back because of budgetry constraints. It has happened in a number of countries.
37. We don’t want to get to that situation, so we want to structure it in a way that is sensible and workable.
38. And to improve the supply of lawyers who help clients in areas like family law and criminal law, a Third Law School will be set up at UNISIM.
39. This Third Law School will provide options to Singaporeans aspiring to a career in the practice of these areas of law and help ensure better access to justice.
40. And it came from our thinking first that people who did not choose to go to law school in the first place, but who want to make a mid-career switch should be given a second opportunity.
41. Many of the outstanding lawyers at the Bar are people who chose law as a second career. In the context of Singapore, where probably the top 300 to 400 students out of a cohort of 30,000 choose law now.
42. Maybe, if you take medical school, probably the top 500 to 600 students out of an entire cohort choose law and medicine. I think, that being the case, if they go to NUS and SMU, when they come out, corporate law and the perceived path to riches is much more attractive than doing criminal law or family law as witnessed by the Attorney General and the Chief Justice.
43. This approach, we hope, will address the need to ensure that there are sufficient lawyers servicing the needs of the community.
44. If I may touch now on building robust court processes.
D. BUILDING ROBUST COURT PROCESSES
45. The key idea is that court processes must be fair, yet there must also be effective use of limited court and prosecutorial resources.
46. A Criminal Case Resolution (“CCR”) scheme established in October 2011 provides an avenue for the defence and prosecution to discuss how to resolve cases at an early stage, with a senior Judge acting as a neutral facilitator.
47. In 2013, more than 80% of the cases referred for CCR were successfully resolved.
48. The AGC and Law Society have now jointly issued a Code of Practice in March last year which encourages both defence lawyers and public prosecutors to observe their duties and adopt best practices throughout the court process.
49. And it is certainly my hope that the courts will take into account that Code in considering the conduct of counsel who appear before it because we can set out laws, but I think a lot depends on ethics and ethos and conventions which are introduced and enforced by the Bar and Bench and the Prosecution working together.
50. The Young Amicus Curiae (“YAC”) scheme in the Supreme Court appoints junior associates to act as amicus curiae in more complex Magistrate’s Appeals, and especially in cases where the accused is not represented.
51. That scheme has been expanded to include cases where the accused is in person and has appealed against a sentence of corrective training or preventive detention.
52. Apart from providing assistance to the court, the scheme nurtures the next generation of top criminal lawyers.
53. The Subordinate Courts have launched a paperless filing system called the Integrated Criminal Case Filing and Management System (“ICMS”) which links all agencies in the criminal justice system.
54. We move to sentencing approach.
E. SENTENCING APPROACH
55. The punishment meted out by the court must fit the gravity of the crime as well as the circumstances of the offender.
56. Over the years, we have reformed the law to give our courts more discretion and flexibility in sentencing to ensure that the appropriate sentence is imposed in each case.
57. As this is something that the public and sometimes even lawyers are not aware of, I stress: Our penal philosophy is not simply grounded on notions of retribution and deterrence. Rehabilitation has to be and is an important part of our sentencing regime.
58. Thus changes to the laws recently have introduced a range of community sentencing options, for example the mandatory treatment orders and community work orders, in the CPC.
59. The changes are targeted at minor offences; offences involving younger accused persons and persons with specific and relatively minor mental conditions
60. In a similar vein, we have expanded the scope of the court’s discretion in determining the punishment in each case.
61. And most of you here know of the substantial changes that were made in 2012, brought in force last year, which gave the courts much greater discretion in capital cases involving most types of murder and some drug offences.
62. That represented yet again a significant shift in philosophy.
63. Resentencing was made available for accused persons who had already been sentenced to death, and those resentencing options were available under the new law.
64. For less serious offences, the Supreme Court has established a Sentencing Council to look into developing a methodology and framework to enhance consistency in sentencing in Subordinate Courts cases, such as through the issuance of Guideline Judgments in Magistrates’ Appeals.
65. There are no sacred cows.
66. Let me move now to rehabilitation and reintegration of offenders.
F. REHABILITATION AND REINTEGRATION OF OFFENDERS
67. The Government has directed a lot of effort towards rehabilitating and reforming offenders.
68. Our Prison Service looks at best practices throughout the world and runs a wide range of rehabilitation programmes for inmates.
69. There are also initiatives to tap into community resources to strengthen the inmates’ support network to reduce re-offending, such as the Community Befriending Project and the Community Outreach Project.
70. For offenders released from incarceration, the Yellow Ribbon Project engages the community in accepting and supporting ex-offenders and their families, giving them a second chance because research again showed that often, prisoners are most vulnerable in their first few months when they are released.
71. They can’t get a job, families often ostracise them and they have no choice but to go back to the very people who got them into trouble in the first place.
72. So we needed to break that cycle, and not many societies have focused on this.
73. These efforts, which are not very well known, were targeted to help our offenders make a fresh start and the results are that our recidivism rates are lower than many other jurisdictions.
74. Our prison population has decreased from 18,000 in 2002 to 12,500 in 2011.
75. Prisons statistics show that between the year 2000 and 2010, the two-year recidivism rate for inmates dropped from 40% to about 24%.
76. By comparison, if we compare ourselves to Japan, New Zealand, UK, US, the recidivism rate in Japan is 43% in 2011, New Zealand is, I think nearly 50% and US is even higher.
77. So these are not the sexy parts of any story but really, one should not just focus on trial processes but before, during and after, and if you can prevent the person from re-offending, you’ve done a great service to society.
G. SECURING LAW AND ORDER
78. These developments and the changes, taken together, have laid a strong foundation as well as the philosophical basis for us to proceed in further developing our criminal justice system.
79. Today we have a system that is effective, responsive and fair.
80. And at the same time, our crime rates have fallen consistently over the years.
81. Our crime rate in 2012 is at a 29-year low, dropping almost 60% from 1992 figures.
82. We do well in international comparisons between Singapore and major cities like London, New York and Hong Kong.
83. For example, in Singapore, the crime rate for violent crimes is 79 cases per 100,000 people in 2012, 79 out of 100,000.
84. In the same year, in New York, there were 1,333 similar cases per 100,000 people, 13 times that of Singapore.
85. In Hong Kong, there were 178 cases of violent crime per 100,000 people, twice that of Singapore.
86. In London there were 1,828 cases per 100,000 people, 23 times that of Singapore.
87. When you look at a criminal justice system, you don’t only look at the processes. Never forget the balance between society and the individual, the trial process, we try to be fair but we have to be fair to society as well.
88. And the agencies must be allowed to carry out their duties and the prosecution should be able to carry out prosecutions, fair process in court and effective enforcement together puts you in a relatively good place.
89. We have a good reputation worldwide for being a safe place, so much so we take it for granted.
90. But most respected indices rank us pretty much number one or number two on this score, and that’s not an easy achievement and not to be lightly taken for granted.
91. These changes have also helped both prosecutors and defence counsel in their practice of criminal law.
92. If I may quote Mr Wendell Wong, Chairman of the Criminal Law Practice Committee of the Law Society, who at a dialogue hosted by the Criminal Bar in 2012 which Chief Justice and I attended: this is “the best time to practice criminal law”.
93. It doesn’t mean that we’ve reached nirvana, it doesn’t mean there should be no further changes. There will be further changes but this is the philosophy that underpins our approach.
94. So I would say, if you look at the changes together in all the different fields, there has been a decisive change in the situation, in the system and all of it underpinned by the very simple philosophical basis which I’ve set out.
95. Looking ahead, what is in store?
H. LOOKING AHEAD
96. Consistent with the approach that I outlined, we are now examining a few more areas with a view towards making more changes
(1) Committee to review the law of homicide and treatment of mental-disabled offenders
97. First, we have set up a committee to review the law of homicide and the treatment of mentally-disabled offenders.
98. That Committee is chaired by SMS Indranee Rajah with members from all key stakeholders.
99. That Committee has looked into, will be looking into further changes to the law of homicide and the treatment of mentally disabled offenders
100. Some of the issues under consideration will include the possible rationalising of the overall homicide framework, including looking at the definition of murder and dealing with deaths caused in the course of violent group crime.
101. There are some discussions as to whether and how you should look at the murder committed in the course of rape, violent sexual offences and offences against very young people who are unable to protect themselves who get killed.
102. We’ve had a few very bad cases in the last few years. The Committee is looking into that as well, as to whether to treat that as a further aggravated condition.
103. The Committee’s formal recommendations are likely to be received in 1H 2014, within the next few months.
104. Let me also touch on early case resolution framework which we are looking at.
(2) Early case resolution framework
105. Building on the criminal case disclosure process, my Ministry is working closely with AGC to study a formalised framework of negotiations between Prosecution and Defence to encourage early case resolution
106. I think the benefits of having that, in plain language: plea bargaining, include transparency of the pre-trial litigation process which will really empower accused persons to make better-informed decisions as to how they wish to plead and it obviously promotes greater resource and costs savings by promoting the expeditious fair and sensible resolution of a case.
(3) Model Penal Code
107. Professors Chan Wing Cheong, Stanley Yeo and Michael Hor have written about the development of a Model Penal Code in their latest book, Criminal Law for the 21st Century – A Model Code for Singapore.
108. They very strongly proposed a moral penal code with an ideological basis on how crimes ought to be defined.
109. They also have proposed a set of provisions expressing the general principles of criminal responsibility as well.
110. We welcome their effort – their proposals need to be given careful thought, regardless of whether we eventually agree or disagree with them on some or all of the proposals.
111. I doubt we will disagree with all of the proposals.
112. We will see what can be adopted and we will give a greater consideration to the idea of trying to rationalise some of these areas.
113. And, we’re happy working with the universities, we welcome much closer collaboration between the Bar, the academia and my Ministry.
114. So for example, from SMU, professor Mahdev Mohan has been helping us in a number of areas, both in the law and foreign affairs ministries, we’ve other professors coming in, and we’ll be working closely with NUS law professors as well, and we’ll certainly look at the scope.
115. At the start of the speech I set out the four fundamental principles which underpin our approach to the criminal justice system. They may be encapsulated in four phrases: Protect society, Due process, Effective law enforcement and Rehabilitation and reformation.
116. Everything we have done, everything we will do, will reflect and take off from these touch points.
117. We hope to work with all stakeholders in future reform efforts.
118. Today’s conference brings together lawyers, prosecutors, judges, academics and other professionals from different countries to discuss and share ideas and best practices in criminal justice.
119. Our approach is to learn and adopt best practices so we welcome all viewpoints and will examine them within the framework of the philosophy we have set out.
120. We thank our overseas visitors for sharing with us their viewpoints and we thank everyone for taking part and helping really develop the idea of a institutionalised criminal justice dialogue. I think that’s critical as we move to the next phase of our development as a society.
121. I wish everyone a good conference, thank you again.