(Delivered in Parliament on 19 March 2018)
The Long Title of this Bill states that the changes will “enhance the fairness of procedures and ensure correct and equitable outcomes in the criminal justice system”. While I agree that the Bill carries important and progressive reforms, I do not think it is possible for any law to “ensure correct and equitable outcomes” in the criminal justice system; there will always be a risk of the innocent being convicted, the guilty being acquitted and victims being left without redress, even with the best laws in place. Nevertheless, I do welcome the significant reforms being made to the Criminal Procedure Code (CPC), to give greater assurance of good and fair outcomes.
In my speech, I will first highlight what I see as enhancements to the law, after which I will articulate some concerns which I believe the Ministry should address.
The Bill has rightly slaughtered some long-standing and sacred cows.
First, under Clauses 6 and 7, the Bill provides for the video recording of statements of an accused person during an investigation. This is something which practitioners including myself have called for over the last 10 years, as this is an important safeguard not just for the accused person but also beneficial for the State. Based on experiences in other countries, a video recording will not only give some protection to the accused person from giving statements under pressure or duress, but it will also reduce the likelihood of frivolous allegations being made against investigators, which in turn will save court time.
The Bill starts small, with compulsory video recording applicable to only Third Schedule offences, which for a start will mean only rape cases under Section 375(1)(a) of the Penal Code. I presume that in future, other offences will be added to the Third Schedule for compulsory video recording. Clauses 6 and 7 also provide for video recording of accused’s statements as an option in other cases besides rape, if the police officer or forensic specialist decides so. The Bill however is silent on what circumstances the police officer or forensic specialist is to take into account before deciding that a video recorded statement should be taken. I would like some clarification from the Ministry on this.
Secondly, the Bill increases the coverage of the criminal disclosure regime to more offences. In the last major CPC review, a statutory framework was introduced for the prosecution and the defence to disclose to each other the key details, witnesses and exhibits long before trial. I believe the disclosure regime has worked well over the last few years to promote fair trials and also to build trust between prosecution and defence. The Bill now extends this regime to cover offences under several additional laws, including the Prevention of Corruption Act, something I had asked about previously. The move to include more legislation under the disclosure regime will build more confidence in the system.
Thirdly, the rights of crime victims are being further enshrined in the Bill. Traditional criminal justice systems do not focus on the victim, as the parties to a criminal case are the State and the accused person, with the crime victim reduced to being a prosecution witness with no redress for harm suffered. Across the world, developed countries recognized this gap and and promoted studies in victimology, putting in place reforms on matters such as reducing victim trauma during investigations and in court, and providing for victim support. In the last CPC review, our Parliament legislated that judges who convict offenders should also consider whether to make a compensation order for the victim’s injuries. However, based on a Parliamentary answer in 2016 to question I filed, the incidences of such compensation orders appeared very low, being made in only 48 cases in the year 2014 and 34 cases in 2015.
In this Bill, Clause 98 will further amend Section 359 of the CPC significantly, by requiring judges who do not make compensation orders for victims’ injuries to record the reasons why they did not do so. This is a strong signal from Parliament, which I expect to greatly increase the numbers of compensation orders made. This is progressive.
While the Bill in the main makes critical positive changes, I have some concerns about specific amendments. After listening to the long and detailed Second Reading speech of the Senior Minister of State, I would like to focus today on just two of these changes: first, the introduction of Deferred Prosecution Agreements; secondly, the extension of video link usage under Clause 80.
Deferred Prosecution Agreements (DPAs)
First, Deferred Prosecution Agreements (DPAs).
DPAs have been in use in other jurisdictions such as the USA and the UK. I agree that DPAs are important tools to address corporate crime, as they enable the State to incentivise corporations to fully investigate and co-operate with the authorities. Such co-operation would also save time and resources for the State, as it facilitates the State having access to information from within the corporation more efficiently.
The DPA scheme introduced by this Bill enables flexible and customized resolutions. The offending corporation may be required to compensate victims, donate monies to a charity, implement compliance and training programmes, and appoint auditors to monitor progress of remedial measures.
Notwithstanding the virtues of DPAs, the fact remains that a DPA is an avenue by which a corporation which has committed a serious offence can avoid prosecution and conviction. This is a consequence that is of tremendous benefit to a corporation, in that it will not have a conviction recorded against it, which will in turn allow it to continue business and not face consequences such as being black-listed or debarred from projects. Thus, the circumstances under which DPAs are offered and entered are of immense public interest.
To this end, it is comforting that the Bill will require all DPAs to be approved by the High Court under the new Section 149F of the CPC. It is stated that the High Court must find that the DPA is in the interests of justice and that the terms of the DPA are fair, reasonable and proportionate.
However, what needs closer scrutiny is that the Bill seems to require less disclosure of the Court’s considerations than say, the scheme in the UK. In the UK, DPAs are regulated under Schedule 17 of the UK’s Crime and Courts Act, which stipulates that the Crown Court must give reasons in open court for why it has approved a DPA in the interests of justice and why it considers the terms of the DPA to be fair, reasonable and proportionate. By contrast, the Bill before the House today requires DPA proceedings to be held in camera and does not require the High Court to give any reasons as to why it is approving a DPA.
I believe this aspect of the proposed DPA regime should be reviewed. After all, entering a DPA is a big deal in the sense that the State is agreeing to let a corporation avoid prosecution for a serious offence that it admits to committing. This option of entering a DPA is not available to all offenders, but is selectively applied, and not applicable to individual offenders. So how corporations are chosen, the considerations for imposing certain conditions on the corporation and approved methods of monitoring the corporation for compliance will be of public interest. In my view, making it mandatory for the High Court to publicly justify why it approved a DPA can only help to instill confidence in the system.
Extension of Video Link Communication with Accused Person
Secondly, I am concerned about Clause 80 on the use of video link for court proceedings. I do not have any issue with the changes allowing vulnerable victims to testify in court via video-link in certain types of cases, as this will likely reduce the victim’s trauma in court. However, I am concerned about the further extension of video link communications with accused persons who are remanded in prison while their cases are pending.
Under the current Section 281(3) of the CPC, an accused may appear via video link if the court is considering applications for release on bail or bond after the first mention, and in proceedings for extension of remand, and in such other matters that may be prescribed. I am not aware of any other matters currently being prescribed.
The Bill today seeks to extend video link to proceedings where an accused person pleads guilty and is convicted by a court, and to proceedings for sentencing after conviction. If passed, this will mean that there will be no need for the prisons to arrange to bring an accused out from prison to court in order that his plea, conviction and sentence be dealt with face to face between the court and the accused. While there is greater security and logistical convenience in using video link in place of physically conveying prisoners to court, I am concerned whether this amendment will compromise justice.
From the court’s point of view, at the time of conviction and sentence, we often see judges admonishing accused persons or warning them not to repeat their behaviour or face more serious consequences in future. Will the effect of such warnings be diminished if seen through a TV screen? As for the defence, the stage of the accused pleading guilty and being sentenced is a critical one, where counsel will usually need to confer with his client in detail. Such communications would include checking with the accused person on the correctness of the Statement of Facts prepared by the prosecution, which will in turn have a direct impact on the sentence imposed. Counsel may also need to take his client’s instructions if the prosecution objects to any part of the defence’s plea in mitigation, and seek client’s instructions on the prosecution’s sentencing positions, which may be communicated only on the day of the hearing to take the guilty plea.
Where video link is used, the defence counsel will be in court while his client is in prison. The communication process between the two will be affected, as it will need to be done via a telephone or other link, where confidentiality is likely to be compromised. Is this too much to risk?
The Bill overall makes important reforms that will enhance the criminal justice system. Nevertheless, there are some aspects, such as those I have highlighted, that require further attention.