29 November 2018
The Criminal Procedure Code (“CPC”) has recently been amended to introduce a formal framework for deferred prosecution agreements (“DPAs”) and to enhance computer-related powers of investigation. The amendments form part of a suite of reforms set out in the Criminal Justice Reform Act 2018 aimed at strengthening 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
With the amendments to the CPC on 31 October 2018, there is now a formal framework for the prosecution to enter into DPAs with corporate offenders. 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, which could include paying a financial penalty, implementing a compliance programme and cooperating in investigations.
DPAs will enable the authorities to investigate large-scale, complex corporate crimes, and help to bring culpable individuals to justice. For example, the Public Prosecutor may (as a condition of the DPA) require a company to produce documentary evidence or assist in investigations against its former managers and directors. This aids successful prosecutions while averting costly investigations and litigation.
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.
Where the corporate entity has failed to comply with the terms of the DPA, the High Court must, upon an application by the Public Prosecutor, 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.
Computer-related powers of investigation
The CPC was also amended on 17 September 2018 to enhance computer-related powers of investigation. Investigators can now order the production of evidence stored on computers where such evidence is in the subject’s possession or power.
In addition, investigators are now empowered to access, secure and safeguard evidence on computers, regardless of whether the evidence is stored on a computer inside or outside Singapore. This will facilitate investigations relating to, for example, web-based email accounts and web storage accounts, where data may reside in computers outside Singapore but is accessed from within Singapore.
Other criminal justice-related amendments as set out in the Criminal Justice Reform Act 2018 and the Evidence (Amendment) Act 2018 that came into force on 31 October 2018 include:
- Enhancing protection for persons who report sexual or child abuse, and reducing the stress they face when participating in the criminal process;
- Expanding the eligibility criteria for community sentences to allow more offenders to benefit from rehabilitative opportunities;
- Strengthening the bail/personal bond regime; and
- Extending video-link hearings to pleas of guilt and sentencing.
The following materials are available on the Singapore Statutes Online website sso.agc.gov.sg:
- Criminal Justice Reform Act 2018
- Evidence (Amendment) Act 2018