Second Reading Speech on the Criminal Procedure (Miscellaneous Amendments) Bill 2024 – Speech by Ms Rahayu Mahzam, Senior Parliamentary Secretary, Ministry of Health and Ministry of Law

Introduction

1. I will now speak about the amendments to law enforcement powers, the proposed provisions on criminal disclosure regime, and other amendments to improve our court processes.

2. These proposed amendments aim to strengthen our levers to tackle crime and enhance transparency, fairness and coherence in our criminal procedure laws.

Law Enforcement Powers Amendments

3. Let me begin with law enforcement powers. Broadly, these amendments are intended to strengthen operational efficiency and investigative capabilities.

4. The first category of the amendments will update, enhance and clarify Police powers.

(a) Clause 10 empowers the Police to search suspects at the point of arrest to detect and remove dangerous items from them. This is to prevent arrested persons from possibly using these items to harm themselves or others, such as the arresting officers and passers-by.

(b) Clause 3 removes the requirements for the Police to physically proceed to the crime scene when investigating arrestable offences, which, with advancements in technology and changes in the profile of crimes, is no longer always necessary or relevant. To be clear, the CPC currently already provides for circumstances where the Police need not investigate into arrestable offences and there is no change to this with the proposed amendments.

(c) Clause 5 allows the Police to conduct a search without warrant at a place when they have reason to believe that the relevant evidence is in the possession or power of a suspect of an arrestable offence.

(i) Currently, the Police can already perform a search without warrant for arrestable offences in certain circumstances. For example, the Police have reason to believe that a suspect would be uncooperative or is likely to destroy the evidence before a search can be conducted.

(ii) The difficulty is that it is not always straightforward for Police to make such a determination at the onset. Often, Police can only reasonably assess the cooperativeness of a suspect after having engaged him or her or sent the production order. Requiring that the Police do so in all cases is not practicable as that would put the suspects on notice and allow them to tamper or destroy evidence.

(iii) The amendment is a practical one that allows for more effective Police investigations.

(iv) I would like to highlight that several pre-requisites must be fulfilled before the Police can exercise this power. First, they must be investigating an arrestable offence. Second, the Police must have reason to believe that the document or thing is in the possession or control of a person, reasonably suspected of having committed the offence. This clause does not give the Police carte blanche powers to search anyone or anything. It also does not give the Police powers to frisk or search individuals walking along the streets just because the Police find them suspicious.

5. The second category of the amendments will expand the powers of certain non-Police LEAs.

(a) Clause 11 empowers CNB officers, immigration officers and prison officers to pursue and arrest a person who has escaped from the lawful custody of their respective agency, another specified LEA, or a prescribed LEA.

(i) Currently, only the Police and the officer from whose custody a person has escaped are empowered to pursue and arrest him.

(ii) However, officers from CNB, ICA and Prisons can also play significant roles in arrest operations. For instance, ICA officers may come across the person at the checkpoint and can arrest him.

(iii) This amendment will enhance the joint Home Team operations and allow the Home Team Departments to operate more effectively together.

(a) To give another example, Clause 7 empowers non-Police LEAs to investigate bail and absconding offences arising from the predicate offences under their purview. Currently, such officers will have to seek the Police’s assistance to investigate such offences.

(i) For greater efficiency, the relevant LEA, which is more familiar with the details of the case, will have the powers to investigate the bail and absconding offences committed by the same accused person and arising from the case which they are investigating.

Disclosure Provisions

Overview

6. Moving on to the amendments on criminal disclosure, let me begin by providing an overview of our criminal disclosure laws.

7. In 2010, we introduced a framework for pre-trial disclosure in the CPC, namely the Criminal Case Disclosure Regime, which is commonly referred to as the “ CCD regime ”.

(a) The CCD regime formalised a framework for the Prosecution and Defence to sequentially disclose and exchange relevant information about their respective cases before trial.

(b) This has led to greater transparency and consistency, and has been welcomed by all sides – the Judiciary, the Defence and the Prosecution.

8. Since 2011, a common law disclosure regime has developed in parallel through case law. The Courts have held that the Prosecution is also obliged to disclose certain additional material on top of what the CCD regime requires. I will briefly explain these:

(a) First, under the Kadar disclosure obligations (“ KDO ”), the Prosecution must disclose unused material that tends to undermine the Prosecution’s case or strengthen the Defence’s case, and is likely to be either:

(i) Admissible, and that might reasonably be regarded as credible and relevant to the guilt or innocence of the accused; or

(ii) Inadmissible, but would provide a real, not fanciful chance of pursuing a line of inquiry that leads to material that is likely to be admissible, and might reasonably be regarded as credible and relevant to the guilt or innocence of the accused.

Put simply, the Prosecution must disclose to the Defence unused material that may be helpful to the accused.

(b) Second, under the Additional Disclosure Obligations (“ ADO ”), the Prosecution must disclose statements of material witnesses who are not called as Prosecution witnesses.

(i) A “material witness” is one who can be expected to confirm or contradict the accused’s defence in material respects.

(ii) The ADO does not involve an assessment of the substance of the material witness’s statement. It covers statements which may be adverse, neutral or helpful to the Defence.

(iii) There are overlaps between the KDO and the ADO. Where an unused material witness’s statement is helpful to the Defence, it would have to be disclosed under the KDO.

9. In 2020, MinLaw commenced a comprehensive review of the criminal disclosure regime.

(a) One thing was clear to us – it is desirable to place the common law disclosure rules on a statutory footing, for greater clarity, certainty and coherence.

(b) It was necessary for us to study how the existing common law regime interfaced with the CCD regime, as well as the overall aims of disclosure. We also considered how some areas of the common law regime, which had been left open by the Courts, should be addressed.

(c) Even though it was working well, we also considered improvements to the statutory disclosure framework, after having observed it in practice for several years.

Stakeholder Consultations

10. Disclosure is an important aspect of the criminal trial process, and has significant implications on the pre-trial and trial process. It was especially important for us to study the practical aspects, including the possible implications on prosecutors, defence counsel, the Courts and law enforcement agencies.

(a) While the initial set of disclosure proposals were ready in early 2021, we took time to finalise them because of our extensive consultations with the various stakeholders, including the Defence Bar, AGC, and the Courts.

11. These proposals were arrived at after extensive discussions with the Defence Bar. We presented the proposals to criminal practitioners and members of the Law Society in 2021, and they provided extensive feedback over multiple consultation sessions through to late 2023. Some of the proposals were adjusted significantly, following the feedback received.

12. While we did not agree with the Bar on every point, we explained the rationale for the proposals, and had candid and robust discussions. Through this process, we were assured that the viewpoints and implications on the various stakeholders, including the Defence and the Prosecution, have been considered, to ensure that our proposed amendments are fair.

13. Ultimately, the regime requires all stakeholders to play their part to ensure procedural fairness. Prosecutors are expected to discharge their disclosure obligations dutifully. The AG has also publicly said that prosecutors take great care to comply with their disclosure obligations, in fairness to the Defence.

Provisions to Place the Common Law Disclosure Rules on a Statutory Footing

14. I will now take you through the proposed disclosure provisions. There are two key aspects.

15. First, clauses 23 and 42 place the common law disclosure rules on a statutory footing, by codifying, clarifying or modifying aspects of the common law.

16. The provisions will codify the common law position on: (1) the scope of the KDO and ADO; (2) the timing of the KDO; and (3) the continuing nature of the KDO and ADO, among others.

(a) We recognise the importance of the KDO and ADO in ensuring fairness to accused persons, and this is why we are putting these obligations in legislation.

(b) We have provided illustrations to help the public and parties understand what the obligations entail.

17. Some aspects of the common law will be modified or clarified to better align with the sequential nature of the statutory disclosure regime:

(a) We will provide that ADO is to be given after the accused has committed to a defence, either in his Case for the Defence (“ CFD ”) or his testimony, in cases where there is no CFD.

(i) Moving the ADO to after the accused has committed to a defence either in the CFD or in his testimony is more consistent with the sequential and reciprocal nature of the CCD regime, where the accused will generally only receive material after filing the CFD.

(ii) I would also highlight that statements of material witnesses that are helpful to the accused will be disclosed earlier, pursuant to the KDO. This would take place when the Case for the Prosecution (“ CFP ”) is filed, in CCD cases; or, in non-CCD cases, before the trial commences.

(iii) Accused persons are expected to state their defence honestly. Generally, they would be able to do so, based on what they know.

(iv) However, we have also considered feedback that there may be cases where accused persons decide to change their defence after obtaining new material disclosed under the ADO. There were concerns that in cases where the new defence is a genuine one which the accused could not have known about earlier, an adverse inference could be unfairly drawn against the accused.

(v) We want to be clear that accused persons will not be prevented from running a new or different defence, which was genuinely uncovered after the Defence obtained new material disclosed under the ADO.

(vi) If the accused decides to run a new or different defence based on new material disclosed under the ADO, he can explain his reasons for the change. The Court will consider the accused’s explanation for changing his defence, and accordingly assess what, if any, inference should be drawn.

(b) Next, we will also provide rules for the disclosure of unused accused statements, specifically, that (a) unused accused statements are outside the scope of KDO; and (b) in non-CCD cases or CCD cases where the CFD is not filed, unused accused statements relevant to the charge are required to be disclosed only after the accused has testified or elected not to testify.

(i) Accused statements come from the accused, and are hence different from other types of unused material which the accused may not know about.

(ii) The proposed rules are also consistent with the CCD regime, where accused statements which the Prosecution is not seeking to adduce as part of its case are required to be disclosed only after the accused has set out his defence in the CFD.

Provisions to Fine-Tune the CCD Regime

18. The second aspect of the disclosure provisions, in clauses 14, 15, 18, 19 and 22, involves fine-tuning aspects of the CCD regime.

19. The CCD regime has been in place since 2010 and has worked well in promoting greater transparency and efficiency in criminal trials. In 2018, we expanded the regime so that more cases could benefit from pre-trial disclosure.

20. We will now further expand the CCD regime to require compulsory participation in both State Court and High Court CCD cases.

(a) First, we will remove the possibility of opting out of the CCD regime in State Courts cases.

(b) Second, we will make it compulsory for the accused to file a CFD after receiving the CFP, in High Court cases.

(i) As the CCD regime was novel when it was introduced in 2011, we took an incremental approach.

(ii) Today, CFDs are regularly filed for most State Court CCD trials, and this has contributed to a more efficient criminal justice system. When parties file the CFP and the CFD, this facilitates clearer identification of the disputed issues, which in turn makes the trial more focused and efficient.

(iii) Requiring the Defence to file a CFD also avoids potential delays that may arise from the belated disclosure of the Defence’s case, which may arise due to a need for further investigations to verify the accused’s claims or having to recall witnesses.

(iv) The proposed changes will align the position in High Court cases with that of State Court cases. Given the complexity of trials in the High Court and the severe consequences involved, it is essential that parties can prepare for trial and assess their cases more fully.

(v) Finally, a clear articulation of the accused’s defence in the CFD will help the Prosecution to identify relevant evidence, including evidence that may be helpful to the Defence, and better comply with its KDO and ADO.

21. The proposed provisions will also further fine-tune other aspects of the CCD regime:

(a) For example, we will enhance consistency between the Prosecution’s CCD obligations in the State Courts cases and High Court cases, by requiring the Prosecution to file a summary of facts in support of the charge in High Court CCD cases, similar to State Court cases.

22. With your permission, Mr Speaker, may I ask the Clerks to distribute a handout detailing an overview of the post-amendment disclosure framework in CCD cases? Members may also access these materials through the MP@SGPARL App.

23. As Members can see, the CCD regime ensures that the Defence receives material from the Prosecution before the trial commences. On the whole, the proposed disclosure provisions reflect our commitment to ensuring transparency and fairness in criminal proceedings.

Other Amendments to Improve Court Processes

24. Now, moving on to the last set of amendments under the Bill, which are the amendments to improve efficiency in our court processes.

25. Clause 16 proposes to allow the Court to release persons accused of relatively minor non-bailable offences (i.e. offences punishable with up to 7 years’ imprisonment) on personal bond, as an alternative to bail.

(a) Currently, such accused persons can only be released on bail, and will be remanded if they are offered bail but cannot find a bailor. This amendment will allow more accused persons to be released before trial, in appropriate cases.

(b) There will be safeguards to guard against the risk of absconding. For example, the Prosecution must consent, before the person can be released on personal bond. Even if the Prosecution consents, the Court can decide not to release the person on personal bail if it considers that this would not be appropriate.

26. Finally, there are also amendments to smoothen and clarify the processes for several new regimes introduced previously, such as the dispensation of oral hearings in certain cases, the new unsoundness of mind regime, the Panel of Psychiatrists and the enhanced victim compensation regime.

Conclusion

27. Mr Speaker, the Bill is a significant milestone in our criminal justice framework. The proposed amendments build on past reforms, and demonstrate our commitment towards building a fair and effective criminal justice system that protects society from crime.