Operationalisation of the Post-Appeal Applications in Capital Cases Act 2022

1. The Post-Appeal Applications in Capital Cases (“ PACC ”) Act, which was passed by Parliament on 29 November 2022, will come into effect on 28 June 2024. ¹

2. The PACC Act aims to safeguard the administration of justice and the rule of law. It introduces a new process for making post-appeal applications (“ PACC Applications ”), ² which will be set out in the Supreme Court of Judicature Act (“ SCJA ”). This provides greater clarity and guidance on the process and considerations which prisoners awaiting capital punishment (“ PACPs ") and their counsel should have regard to when making PACC Applications.

Key Features of New Procedure for PACC Applications

3. The key features of the new procedure for PACC Applications include:

(a) Only the Court of Appeal (“ CA ”) may (i) hear PACC Applications; and (ii) grant a stay of execution of the sentence;

(b) The PACP must first apply for permission from the CA to make a PACC Application. ³ The application for permission must be filed together with written submissions and supporting affidavit(s). ⁴ The affidavit(s) must state, for  the CA’s consideration, matters including the grounds of the PACC Application to be filed, whether there was any delay in filing the application for permission, and the reasons for such delay. The details that are to be included in the supporting affidavit(s) are listed in the Rules of Court 2021.

(c) The CA must consider the following matters when deciding whether to grant permission:

(i) Whether the application is based on material that could not have been adduced in court before the relevant date, ⁵ even with reasonable diligence;

(ii) Whether there was a delay in filing the application after the PACP or PACP’s counsel obtained the material, and the reasons for the delay;

(iii) Whether the prescribed supporting documents have been filed; and

(iv) Whether the application has a reasonable prospect of success.

The CA retains discretion to grant permission even if any or all of these matters are not met. The CA may also make incidental directions and interim orders.

(d) Where the PACP had previously been found by the CA to have abused the court’s process in a relevant application, ⁶ or to have abused the court’s process in any other application or action to frustrate or delay the carrying out of the capital sentence, that was filed on or after 28 June 2024, the CA must not grant permission. However, the CA may still grant permission in such cases if the PACP adduces material that was not adduced in court before the most recent finding of abuse, and could not have been adduced then even with reasonable diligence.

(e) If permission is granted, the PACC Application must be made to the CA within 3 days after the date on which the permission is granted. The CA will then determine the PACC Application.

Alignment of Procedure for Review Applications with the New Procedure for PACC Applications

4. The PACC Act also makes consequential amendments to the Criminal Procedure Code (“ CPC ”), to align certain aspects of the procedure for applications to review concluded criminal appeals under the CPC, with the new procedure for PACC Applications.

Greater Clarity on When the Capital Sentence may be Carried Out

5. The PACC Act also amends the CPC to provide that a capital sentence may be carried out unless:

(a) The CA has granted a stay of execution;

(b) There is a pending application for permission to apply for a stay of execution, or an application for a stay of execution, which has been filed in the CA and served on the Singapore Prison Service in the prescribed manner; or

(c) The President has ordered a respite.

6. This provides clarity on when the sentence may be carried out. It also provides statutory protection to PACPs by prohibiting the carrying out of the capital sentence, even without a stay of execution, where there is a pending application for permission to apply for a stay of execution, or an application for a stay of execution, that meets certain criteria.

7. An overview of the post-appeal process can be found in the Annex .

Ministry of Law

Ministry of Home Affairs

[1] For background, see the press release on the First Reading of the PACC Bill , as well as the Second Reading speech of the PACC Bill .

[2] Post-appeal applications are applications filed by a prisoner awaiting capital punishment after all avenues have been exhausted. Examples of applications covered under the definition of a PACC Application under the SCJA include (a) an application for a stay of execution of a capital sentence, (b) a judicial review application challenging the President’s decision not to grant clemency, and (c) a judicial review application challenging the Public Prosecutor’s decision not to grant a certificate of substantive assistance under the Misuse of Drugs Act 1973. It does not include a review application under section 394F of the Criminal Procedure Code 2010 (“ CPC ”).

[3] The application for permission may be heard by a single Judge exercising the CA’s jurisdiction, who may deal with it without an oral hearing.

[4] Where the applicant is represented by one or more counsel, this refers to affidavit(s) made by the counsel (O24A r 2(4)(a) of the Rules of Court 2021 (“ ROC ”)). Where the applicant is not represented by counsel, this refers to an affidavit made by the applicant (O24A r 2(4)(b) of the ROC).

[5] For a PACP’s first PACC Application, the relevant date is the date when the capital sentence was upheld, confirmed or imposed by the CA. For a PACP’s second or subsequent PACC Application where an earlier application for PACC permission (which is not an application for PACC permission for the second or subsequent PACC Application in question) or PACC Application has been determined, the relevant date for the making of the second or subsequent PACC Application in question is the date of the most recent determination of any such application.

[6] “Relevant application” refers to PACC Applications, applications for PACC permission, review applications under the CPC relating to a capital case, and applications for permission to make review applications relating to a capital case.

Annex

1. Overview of post-appeal processes (PDF, 0.1MB)