Speech by Mr. Louis Ng Kok Kwang, MP for Nee Soon GRC at the Second Reading of the Criminal Justice Reform Bill [Bill No. 14/2018] and the Evidence (Amendment) Bill [Bill No. 15/2018]
Increasing the range of community sentences available
Sir, one of the key amendments in this Bill is to make community sentences available to a wider range of offenders.
Community sentences provide our Criminal Courts with alternative sentencing options. They focus on rehabilitating rather than punishing the offender.
This proposed amendment is just one example, which indicates a more holistic and reformative approach to criminal justice.
This is a very welcomed change. There are instances in which the full brunt of society’s condemnation of an offence must be brought upon a particular offender.
However, it must not be forgotten that rehabilitation is aimed at changing the root causes of an individual’s criminal behaviour and should always be foremost in mind.
Moving forward, can I ask the Minister whether we will eventually let the Criminal Courts decide in which instances a community sentence can be imposed?
Can I also ask if, in line with the spirit of these amendments, will the Minister consider providing our Criminal Courts with more alternative sentencing options?
A recent case illustrates the difficulties that courts face because of limitations in sentencing options. The Judge will be releasing written grounds and what I will discuss is informed by media reports.
In this case, an individual was convicted for sexual assault and rape of a 16 year old girl and sentenced to reformative training.
There are some who may consider this a light sentence. They may change their mind when they learn that the offender was 14 years of age when he committed the offence and has a low IQ of 61.
I do not, for one moment, suggest that the actions of this young offender should be minimised in any way. His actions have severely traumatised a young girl and she is likely to remain scarred for life.
What is notable from the press reports is the difficulty that the Judge faced with the limited sentencing options that were available.
In this case, the Defence lawyers had asked for reformative training.
The Prosecution asked for a jail term of between 15 to 18 years with at least 15 strokes of the cane.
The Prosecution argued that the offender lacked the requisite cognitive abilities to understand the programmes because of his low IQ and was unlikely to benefit from reformative training.
I am not sure though if this is the signal that we want to send as a Society when dealing with such an offender.
Ultimately, Justice Woo had said that this case had exposed larger issues at stake, including limited sentencing options available to a court faced with a young offender who has some intellectual disability.
I would thus like to ask Minister if this concern can be addressed and whether we are looking into the sentencing options available to a court faced with a young offender who has some intellectual disability.
Improvements to victim compensation regime
Next, I am supportive of the amendments to the victim compensation regime, which makes it easier for victims to obtain compensation through the criminal courts, increase victim participation in the compensation order process, and allow dependents to obtain compensation in certain cases.
The effectiveness of the regime will depend on how easy it is for victims and dependents to navigate the process. As such, can Minister elaborate on the procedures for seeking compensation from the criminal courts?
Can I also find out if there will be a limit on the compensation that can be ordered? Further, can Minister clarify the rationale for limiting criminal compensation for a deceased victim’s dependents to funeral expenses and bereavement?
The Ministry of Law has been looking at ways to make the victim compensation regime more effective.
- In 2010, we made it mandatory for the court to consider in every case whether it should order compensation.
The Bill now goes significantly further –
First, the court will be required to give reasons if compensation is not awarded, where it has the power to do so.
Second, victims will be able to participate in the compensation order process by making submissions or giving evidence.
- This is meant for simpler cases – the criminal courts are not equipped to deal with complex hearings usually dealt with by civil courts.
- And, dragging out proceedings to deal with compensation will have a knock-on effect on the court’s ability to deal with other cases.
Third, the court will be empowered to order compensation of the dependents of a person whose death was caused by an offence, for bereavement and funeral expenses.
Departure from current modes of searching women
Sir, this next point has created a fair amount of concern amongst members of the public. Can Minister clarify the rationale behind Section 83(2), which departs from the current status quo where a woman is searched by a woman?
What checks will be in place to ensure that such searches are made with strict regard to decency as provided under section 83(3)?
- The amendments will allow a male officer to search a woman, in specific circumstances –
- The officer reasonably suspects the woman of involvement in a terrorist act.
- Second, the officer believes in good faith that the terrorist act is imminent.
- Third, the officer believes in good faith that the search cannot be made within a reasonable time by a woman officer.
- This will allow searches of women suspected of being terrorists where time is of the essence and any delay could mean loss of lives.
Threshold for reviewing earlier decision of an appellate court
Next, lawyers have raised to me concerns that the threshold for the re-opening of criminal cases is too high. The impetus behind instituting the review application framework seems to be to prevent the opening of floodgates to applications to re-open cases.
However, it bears noting that when seen in the context of all the cases that go before the court, the applications to re-open cases are few and far between.
While finality of proceedings is a key concern, ensuring that miscarriages of justice do not occur is as compelling a consideration.
Can Minister clarify that the new review application framework should not be interpreted to allow floodgates arguments to always prevail, and that considerations of justice and the prevention of error should be given due weight even at this late stage of the proceedings?
The Bills will give the court more control over applications to re-open concluded criminal cases where all appeals have been exhausted (and civil applications that have a similar effect), by codifying the procedure set out by the Court of Appeal in its recent judgments and providing for other aspects of procedure not covered in previous judgments.
We have looked at the procedure set out by the Court of Appeal, and we agree that it strikes the right balance between preventing miscarriages of justice and the need for finality in criminal proceedings where all appeals have already been exhausted.
Safeguards for video recording
Next, I do welcome the introduction of video recording for some police interviews as it ensures greater transparency of the interview process, protecting both interrogator and interrogatee.
It deters the use of coercive practices by investigators, deters false claims of involuntariness, assists judges in more accurately assessing the voluntariness and accuracy of statements made in custody, and increases public trust in the police.
However, these benefits can only be achieved if proper safeguards are put in place.
Video recording will only reduce instances of false confessions if it captures the entire interaction between interrogator and accused.
In the words of Professor Michael Hor, “the purpose of such a scheme is defeated if the whole interrogation process spans across hours but only a portion of the statement or confession was recorded on tape”.
Will the Minister consider including in regulations or guidelines on the use of video recording the requirement that the entire interview must be recorded and that the police do not engage in unrecorded pre-interrogation exchanges or preliminary interviews with the suspect except where absolutely necessary?
Next, studies have shown that footage primarily focused on the suspect causes a “camera perspective bias” where viewers are given the notion that the statement was voluntarily given even when it was not.
Will the Minister consider including in regulations or guidelines that the footage should have equal focus on both suspect and interrogator, and ideally also shows the full extent of space in the room?
Lastly for this point, I note that only rape under Section 375(1)(a) has been listed as an offence for which statements must be video recorded.
Will the Minister consider making video recordings mandatory for all offences punishable with death or life imprisonment, and for all vulnerable suspects including juveniles, the elderly, the cognitively impaired, or the psychologically disordered regardless of the alleged offence?
Vulnerable suspects are exceptionally vulnerable to giving false confessions and should be given special protection in the investigative process.
The implementation of VRI requires significant investment of infrastructure and training.
It will therefore have to be implemented in phases.
In the first phase of implementation, we intend to make it mandatory to conduct VRI for suspects in rape offences under section 375(1) (a).
Protection of victims of sexual and child abuse cases
Next, this point relates in part to the rationale behind the Evidence (Amendment) Bill that victims of sexual and child abuse offences require special protection.
Aside from mitigating the trauma of the trial process on these particularly vulnerable victims, will the Minister consider enhancing the penalties or creating new offences where children are preyed on by online predator?
The ease of access and anonymity of the Internet heightens the susceptibility of children to exploitation by online predators.
New Section 154A to the Evidence Act
Next The Evidence (Amendment) Bill seeks to introduce a new Section 154A to the Evidence Act to restrict 2 things – first, the questions that can be put to the alleged victim, and second, the type of evidence that can be adduced about the alleged victim.
Clarification on the scope of questions that are prohibited
My first query relates to the types of questions that can be put to an alleged victim. There is currently a provision in Section 154 of the Evidence Act to prevent such questions from being asked of an alleged victim.
Can I clarify what questions the proposed Section 154A(1)(a) will cover that are do not already fall under the scope of Section 154?
Can I also clarify if the combined effect of Section 154A(1)(a) and 154A(2)(c) is intended to stop questions before they are even asked?
If so, I am fully in support of the amendment as the mere asking of a question is sometimes enough to provoke trauma in an alleged victim.
This is lacking under Section 154, which only prevents questions that have already been asked from being answered.
These Bills introduce a suite of measures to further enhance protection. Let me highlight a few examples.
- First, the publication of information leading to the victim’s identity will be automatically prohibited – even before the case goes before the Courts.
- One of the fears that victims have when deciding whether to report sexual offences, is that media coverage will cause them further distress.
- This is why the courts often grant gag orders to prevent the publication of information that may lead to the identification of a victim.
- However, the case must actually be before the Court before such an order can be granted.
- This means that if a person gets wind of the identity of a victim, and the case has not yet come before the courts under current law, that person can make public information revealing the victim’s identity.
- Some suspects may even do this to intimidate the victim and make them basically pay a price for making a police report.
- To prevent this, the Bills will move the restrictions upstream – anyone who knows that another person is an alleged victim of a sexual offence will not be allowed to publish any information that may lead to the identification of the victim’s identity.
- So for example, a person could have confided in a colleague that she was the victim of a sexual offence. If this colleague makes public the fact that the person was such a victim, the colleague would be committing an offence. And this applies even if the person has not reported the offence to the police.
- Second, all victims of sexual or child abuse offences will give testimony in a closed-door hearing, unless they wish to give evidence in open court.
- Third, we will amend the Evidence Act so that we can put in place subsidiary legislation that restricts the kinds of questions the Defence can ask.
- They will not be allowed to ask questions about the victim’s sexual behaviour with persons other than the accused, where such behaviour does not relate to the charge, unless they have leave of Court.
- Application for leave must be made in the absence of the victims.
- This will help prevent a re-occurrence of the incident that the press reported on late last year, where a defence lawyer embarked on a line of distressing questions when cross-examining an alleged victim of molestation.
Finally, Clause 77 will allow the video-recorded statements of vulnerable victims, such as victims of serious sexual offences, to be used in place of their oral evidence-in-chief in court.
Testifying in court can be a difficult experience for such victims.
Where possible, we want to minimise the trauma that these victims face in the court process.
This will only be implemented in later phases.
We recognise that this must be implemented sensitively in order to help arrive at the truth – and we will work with stakeholders on training and methods.
Clarification on the scope of sexual offences
My second question is on the scope of sexual offences under the new Section 154A.
The types of offences that are considered sexual offences are set out in Part 2 of the new First Schedule. Reference there is made to several offences under the Penal Code and the Women’s Charter.
Most of the offences referred to are capable, at first sight, of being considered of a sexual nature.
There are others, which are not as clear. For instance, there is a reference to Section 356 of the Penal Code, which criminalises the assault, or use of criminal force to commit theft of property carried by a person.
While I can understand that in certain cases the prosecution may prefer a charge under Section 356 where sexual violence was used in the course of committing theft of property because of ease of proof, this also casts too broad a net as there will be many other cases that do not involve violations of sexual nature.
Can the Minister clarify that an offence will not be deemed to be of a sexual nature just because it falls under Section 356?
Sir, notwithstanding the above clarifications, I stand in support of both Bills.