28 March 2018
On 19 March 2018, the Criminal Justice Reform Bill and the Evidence (Amendment) Bill were passed in Parliament. Through amendments to the Criminal Procedure Code, the Evidence Act and other related legislation, the Bills seek to strengthen Singapore’s criminal justice framework by introducing added safeguards and processes to enhance the fairness of existing procedures and ensure the accuracy and equity of outcomes in the criminal justice system.
Deferred prosecution agreements
The Criminal Justice Reform Bill introduces a formal framework for the prosecution to enter into deferred prosecution agreements (“DPAs”) with corporate offenders.
DPAs will enable prosecutors to deal more effectively with corporate offending. In her second reading speech, Senior Minister of State for Law and Finance Ms Indranee Rajah explained that DPAs will be particularly useful where the prosecution of a corporate offender unnecessarily punishes not just the management, but also the employees or other stakeholders and shareholders of the corporate entity for what might be the acts of a small number of employees or officers of the company.
The DPA framework will only apply to scheduled offences. These include certain offences under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act, the Prevention of Corruption Act and the Securities and Futures Act. The corporate entity must be represented by an advocate at the time the DPA is entered into.
Under a DPA, the Public Prosecutor agrees not to prosecute a corporate entity in exchange for strict compliance by the corporate entity with a series of conditions. Such conditions may include: (a) admitting wrongdoing, (b) paying a financial penalty to the Consolidated Fund, (c) compensating victims of the alleged offence, (d)implementing a compliance programme, and (e) cooperating in investigations. Unlike most criminal fines, the financial penalty will not be subject to a statutory maximum.
Where the corporate entity has failed to comply with the terms of the DPA, the High Court must terminate the DPA. In that event, the corporate entity will not be entitled to recover any money it had paid before the termination of the DPA pursuant to any requirement imposed by the DPA, and will not be entitled to any relief for any detriment caused to it by its compliance with the terms of the DPA before the termination of the DPA. Further, if the Public Prosecutor finds that, during the negotiations for the DPA, the corporate entity provided to the Public Prosecutor inaccurate, misleading or incomplete information that the subject knew or ought to have known was inaccurate, misleading or incomplete, the Public Prosecutor may initiate new criminal proceedings on the subject-matter of the DPA against the corporate entity.
Safeguards include the following:
- All DPAs will require approval from the High Court. Approval will only be granted if: (a) the DPA is in the interests of justice, and (b) the terms of the DPA are fair, reasonable and proportionate.
- To ensure transparency, DPAs must be published after High Court approval unless otherwise ordered by the High Court.
The Ministry of Law (“MinLaw”) had consulted the Law Society of Singapore and the Criminal Bar on the details of this proposal in the second half of 2017, and received strong support.
Computer-related powers of investigation
The Criminal Justice Reform Bill also contains provisions to enhance the computer-related powers of investigation in the Criminal Procedure Code.
Under the amendments, investigators will be able to order the production of evidence stored on computers where such evidence is in the subject’s possession or power. The amendments will allow regulations to be made to specify how such production orders must be complied with, including the format of the reply and the method of delivery. This is intended to enable electronic replies in machine-processable formats.
Investigators will also be empowered to access, secure and safeguard evidence on computers, regardless of whether the evidence is stored on a computer inside or outside Singapore. This is expected to facilitate investigations relating to, for example, web-based email accounts and web storage accounts, where the data may reside in computers outside Singapore but is accessed from within Singapore.
These developments follow from a public consultation conducted by MinLaw from 24 July 2017 to 24 August 2017.
Other key features of the Bills include:
- Allowing investigators to take statements from witnesses via video recording;
- Enhancing protection for persons who report sexual or child abuse, and reducing the stress they face when participating in the criminal process; and
- Expanding the eligibility criteria for community sentences to allow more offenders to benefit from rehabilitative opportunities.
The above developments also follow from the public consultation conducted by MinLaw from 24 July 2017 to 24 August 2017.
- Criminal Justice Reform Bill
- Evidence (Amendment) Bill
- Second Reading Speech on the Criminal Justice Reform Bill and Evidence (Amendment) Bill