The CPC Amendment Bill proposes some significant changes to our criminal procedure. I will first talk about what I see as improvements, and then touch on some provisions of concern.
The three improvements I will touch on are Pre-Trial Release on Personal Bond, Codification of Prosecution’s Duty to Disclose Unused Materials, and Compensation Orders for Victims.
Pre-trial Release on Personal Bond
I am very pleased to see the change to enable more accused persons to be released while waiting for their trials. Clause 12 will amend Section 93 of the Code, to make it more explicit that certain accused persons can be released on their own personal bonds and not need to find a bailor to post bail. This will apply at both the stage when the law enforcement agency is managing the case, as well as later when the accused is charged in court. Accused persons will be eligible to be released on personal bond if they are facing charges where the maximum imprisonment for the offence is not more than 7 years.
By making the option of being released on personal bond very explicit, it is likely that law enforcement agencies and the court will release more accused persons on personal bond. This is especially meaningful for suspects who are poor and cannot find bailors of means to post bail for them. As I had highlighted during the debate on the Workers’ Party’s Justice Motion in November 2020, not being able to post bail will usually result in job loss and devastating consequences on the family. In addition, such pre-trial detention would affect the person’s ability to prepare his defence. I had also highlighted that to address any concerns, conditions could be imposed when releasing a person on his own bond, such as reporting requirements, maintaining employment and so on. Clause 13 gives effect to this.
Sir, I had suggested during the Justice Motion that pre-trial release on personal bond be looked into. This amendment goes towards levelling the playing field between the rich and the poor in the criminal justice process, and I commend it.
Codification of Prosecution’s Duty to Disclose Unused Materials
Clause 23 introduces a new Part 10A to the Code, entitled “Prosecution’s Obligation to Serve Certain Materials on the Defence”. The new provisions basically seek to import into the Code certain principles that have evolved through recent court cases. During the debate in 2020 on the Justice Motion, the Leader of the Opposition had also suggested that codification of this obligation be done for greater certainty. By importing these principles into the CPC, it would be easier for law enforcement, prosecution, defence and also the general public to access them and to understand what is expected.
Compensation Orders to Victims
The third improvement I would highlight is in Clause 40. This concerns the court’s powers in a criminal case to order compensation to the crime victim.
Clause 40 amends Section 359 of the Code to increase the chances of compensation being awarded in a criminal case. One change will be that if the court decides not to award compensation, it has to give its reasons for not doing so. Secondly, in a case where the offender has caused death, a dependant of the deceased victim can be awarded compensation for bereavement and funeral expenses. These are positive moves to ease the pain of victimisation.
Areas of Concern
I would like to highlight two areas of concern – first, on one aspect of Forensic Medical Examinations, and secondly, the new Sentence for Enhanced Public Protection (SEPP).
Forensic Medical Examinations
Clause 7 will introduce the new Part 4 Division 5 of the Code, which will govern forensic medical examinations (FMEs).
I note the framework set out for the conduct of FMEs both on victims and suspects. The provisions will facilitate obtaining evidence of high value to solve crimes, and include some safeguards to ensure that trained professionals conduct FMEs with regard to privacy concerns.
The FME regime can be invasive, such as drawing samples from intimate body parts or drawing blood; they can also be non-invasive, such as drawing non-intimate body samples like head hair, urine or swabs of the mouth. In the case of non-invasive FMEs, the proposed Section 40I provides that reasonable force can be used by authorised officers to extract the samples if the accused is uncooperative. Under the proposed Section 40I(2), such an authorised officer includes an auxiliary police officer. I am concerned about this.
As we are aware, APOs are trained mainly to conduct security activities and to assist police in maintaining law and order. Involving APOs in the use of force to extract body samples from accused persons is a highly confrontational investigative process which carries significant risk. I would like to know how APOs are qualified or trained to perform such a task.
There has been some public concern about the introduction of the SEPP, and justifiably so. The concern largely stems from the fact that even though the offender has been sentenced by the court to a minimum custody period of between 5 to 20 years, when precisely the offender will be released is subject to annual review by the Ministry; in fact, he may never be released if deemed to be still dangerous. Thus, an SEPP inmate could spend the rest of his life behind bars, based on a prediction. Under the proposed Section 304B of the Code, an SEPP sentence could be imposed even on someone who is appearing before the courts for the first time, with no prior criminal records.
In assessing the SEPP, I note at the outset the following safeguards in the Bill. First, whether to invoke the SEPP would be decided by the sentencing court and not the Ministry. The judge will make this decision aided by risk reports submitted by the prosecution and also by the defence. Secondly, the category of offences for which the SEPP may be invoked is circumscribed by the proposed Seventh Schedule. These offences generally include serious sexual crimes but also non-sexual violent crimes where death or grievous hurt is caused. Thirdly, even if the case falls within the Seventh Schedule, the judge need not invoke the SEPP and can instead decide to proceed with other sentences. The judge may assess that an SEPP sentence is not required to protect the public; or, as explained by sub-section (9) of Section 304B, the judge may also decide that there are special reasons not to impose the SEPP, such as when a lesser sentence is adequate or when an SEPP sentence would be gravely disproportionate to the circumstances of the case.
These judicial safeguards are very critical. I reiterate that the SEPP is a severe sentence that should be invoked only in the most extreme of circumstances. There are compelling reasons for this.
First, even within the offences listed in the Seventh Schedule, such as those involving death or grievous hurt, these could arise in circumstances where the offender may not be dangerous in general. Such scenarios could include one-off incidents of voluntarily causing grievous hurt, or a case of a family member not taking steps to stop another person in the household from causing the death of a child or vulnerable person. In such cases, the usual sentence for the offences should suffice, as these sentences are what Parliament has approved as proportionate for the crimes concerned.
Secondly, whether risk assessments are reliable or not has proven to be a real issue in other jurisdictions. Predictions of dangerousness, even by trained professionals, can be wrong. There is ample research literature in the USA that predictions of future violence, more often than not, turn out cases which are “false positives”, and that out of every 3 persons predicted to commit future violence, only 1 will do so. Although risk assessment tools have become more sophisticated over time, and some argue are more reliable today, the risk of false positives will always be there. We therefore run the risk of over-detaining someone based on a wrong prediction of dangerousness. In the case of the SEPP, the risk of over-detention is amplified because there is no definite release date.That said, I note the efforts by the government to clearly scope the application of the SEPP. The SEPP provisions apply to a restricted class of offences. In addition, it seems from the Ministry’s pronouncements that the SEPP is targeted at a small handful of offenders who may have psychiatric disorders like paedophilia. Even so, I call on our Courts and the Ministry to be circumspect when assessing the clinical assessment reports, as they are not infallible. In addition, whether a person deemed dangerous at age 50 will be equally dangerous at age 70 deserves intense scrutiny.
I wish to make one observation about an aspect that struck me when reading MinLaw’s press release on this Bill, and that is about offenders who are convicted of multiple offences. In two of the scenarios highlighted that were deemed possibly suitable for the SEPP, the offenders were sentenced by the court to very long imprisonment terms of 40 years and 45 years for sexual offences against multiple victims. These very long jail terms were the result of the jail terms imposed for several charges being ordered by the judge to run consecutively ie. some jail terms were added up, to run one after another. I pause here to note that 40+ years is a much longer period of time than the currently proposed minimum detention period for the SEPP of 5 to 20 years. Therefore, in such cases of multiple charges, judges can already order the offender to spend the majority of their lives in jail, using long-established and accepted sentencing principles. This would, to me, be preferable and would attract less controversy than leaving it to the executive to determine when an offender should be released.
All in all, the SEPP makes a difficult debate.
I understand the rationale of protecting the public in the scenarios described. In view of the limited class of offences involved, and the judicial safeguards I mentioned earlier, I feel constrained to offer my cautious support for it.
I have highlighted in my speech three positive aspects of the Bill, regarding the release of persons before trial on personal bond rather than requiring bail, prosecution’s duty to disclose materials it does not intend to use, and on compensation for crime victims. On the other hand, I have concerns about the role of auxiliary police in Forensic Medical Examinations and the SEPP regime. I look forward to the Ministry’s clarifications.
Overall, the Workers’ Party is in support of the Bill.