Wednesday, 26 July 2017

Video-recorded statements, protection of vulnerable victims among proposed changes to the Criminal Procedure Code and Evidence Act

More protection for victims under criminal code revamp
Earlier gag orders on identity of abuse victims and closed-door hearings among proposals
By Ng Huiwen, The Straits Times, 25 Jul 2017

The courts will wrap an extra layer of protection around victims of sex crimes or child abuse to spare them any further trauma, if the sweeping changes to improve the criminal justice process are pushed through.

To prevent such vulnerable victims from being identified, a gag order will kick in the moment a case of sexual or child abuse is reported to the police, it has been proposed.

Vulnerable persons will also be able to testify in closed-door hearings, and physical screens can be used to shield them from the accused person.

These are among the 50 changes to the Criminal Procedure Code and Evidence Act proposed by the Ministry of Law (MinLaw) which were announced yesterday.

In a first for Singapore, investigators will also be given the power to take statements from suspects and witnesses in a video recording, instead of relying only on written statements.

Victims of sexual crimes may be able to video-record their testimony instead of having to recount it in person in court, while video recording will be made compulsory for suspects in such crimes.

This will give the court a sense of the suspect's demeanour and help it to gauge how voluntarily the statements were made.

The amendments are aimed at enhancing the fairness, accuracy and equity of the criminal justice system, said MinLaw.

Currently a gag order on the identities of vulnerable victims is issued only when the case goes before a court, but MinLaw wants it to kick in as soon as a police report is made.

Closed-door hearings will also be automatic, unless the victims wish to give their evidence in open court.

To prevent misuse of video-recorded statements, these may be viewed only at police stations or approved places.

Lawyers will also be barred from probing a victim's sexual history unless they obtain permission from the court. This would lessen the ordeal faced by such victims, said lawyers and academics.

National University of Singapore law professor Kumaralingam Amirthalingam said the reforms, if passed, would encourage vulnerable victims to come forward as they will feel better protected, adding that these are "positive steps", when taken together with other recent efforts.

In February, a one-stop centre to provide medical examinations for sexual crime victims was launched. An Appropriate Adult scheme, under which suspects under 16 will be accompanied by trained volunteers during police investigations, kicked in from April.

Association of Women for Action and Research's executive director Corinna Lim said a barrier to victims reporting sexual assaults and seeing the case through is the perception that their behaviour may be "put on trial".

Other proposed changes include expanding the community sentencing regime to include more offences and those who are not habitual offenders.

The eligibility for mandatory treatment orders, where offenders undergo treatment for mental health conditions in lieu of jail time, will include certain offences with sentences of up to seven years. At present, the limit is three years.

The public can give their feedback on the proposed changes until Aug 24.

Additional reporting by Tan Tam Mei

Video recordings will help court assess statements
They will also aid in lessening the trauma vulnerable victims face in recounting ordeal
By Ng Huiwen, The Straits Times, 25 Jul 2017

The use of video recording during interviews will allow a court to consider the demeanour of suspects and witnesses, and assess whether the statements were made voluntarily, and how much weight to place on them.

For vulnerable victims, video-recorded statements are also aimed at minimising the trauma they may face in recounting their ordeal, when these are used in place of testimonies, said the Ministry of Law.

Proposed changes to the Criminal Procedure Code and Evidence Act aim to strengthen the powers of investigators as well as increase the protection for the vulnerable.

It includes allowing a male police or Immigration and Checkpoints Authority officer to search a woman suspected of a terrorist act.

This will enable more effective detection and prevention of terrorist threats, said the Ministry of Law. At present, only a female officer may search a woman suspected of a criminal offence.

Video recording is expected to be introduced in phases, after the laws are passed some time later this year.

Law enforcement officers will be able to decide, based on the suitability of a case, whether to take a statement in writing or via video recording.

Already, officers have been trained on the skills needed for video-recorded interviews, which would be made compulsory for certain crimes, such as for suspects of serious sexual offences.

To prevent the videos from being leaked on the Internet or sold on the black market, several safeguards will be put in place.

Defence lawyers will be able to view a video-recorded statement only at an approved place, such as a police station. The unauthorised copying, use or distribution of the video will also be an offence.

In 2015, the Ministry of Home Affairs said it would study the feasibility of video-recorded interviews with suspects in a pilot programme. But this did not take place, as the appropriate legislative framework was not yet in place.

Lawyer Sui Yi Siong said that currently, if an accused person challenges the voluntariness of a given statement, the courts will have to go through a "somewhat laborious" process known as a "trial within a trial".

"With a video-recorded interview, it will be much easier to verify such challenges," said the associate at Eversheds Harry Elias.

He added that this will also allow the courts to observe the body language of the accused when answering, and hear the nuance or emphasis in the questions asked.

Meanwhile, the proposed changes to the bail regime will require sureties to prove that they can cover the amount forfeited if a person "jumps bail". This may involve producing Central Provident Fund statements or proof of income or assets.

Electronic tagging will also become a possible bail condition for those at a lower risk of absconding.

Greater protection may encourage more victims to report crime
By Ng Huiwen, The Straits Times, 25 Jul 2017

The proposed legal changes that are aimed at protecting vulnerable persons could help more to come forward and minimise further damage to them, said lawyers, law academics and advocacy groups.

Criminal lawyer Hamidul Haq said the automatic issuing of gag orders and in-camera hearing will give victims greater confidence in reporting a crime.

Currently, "gag orders need to be applied for in court and before this can be done, there may be a risk of the information going public", said Mr Haq, a partner at Rajah & Tann Singapore.

He added that social media, in particular, has made it easier to track a person down and may be a platform for "many nasty reactions", causing embarrassment to the victim.

RHTLaw Taylor Wessing family lawyer Michelle Woodworth lauded the move to allow victims to be shielded from the view of the accused person, through a physical screen, while they provide testimony in court.

This would go a long way in reducing stress on the victim, empowering the person to speak without fear and secure redress without reliving the abuse by coming into contact with, or within sight of, the aggressor during the court process, she said.

Association of Women for Action and Research (Aware) executive director Corinna Lim said that the recovery process for survivors of sexual assault can be adversely affected if they have to recount their experiences multiple times.

This can be minimised with the introduction of video-recorded statements, which can be used in place of a victim's testimony in court.

Ms Lim said: "Further, taping a victim interview provides a more reliable method of documentation than written notes. In other words, it provides the 'best record' of the interview."

However, she said there is a chance that victims could get confused or block out parts of the incident while giving the video- recorded statement.

A possible option would be for judges to be trained to properly understand victims' behaviour and psychology before the scheme begins, she said.

Other changes in the area of enhancing court procedures include allowing only psychiatrists from a court-administered panel to give evidence on criminal cases.

The courts, in some past cases, have noted that psychiatric expert evidence lacked objectivity and competence. The panel will admit qualified psychiatrists for a term of two years.

Welcoming the move, Dr Lim Boon Leng, a psychiatrist in private practice, said: "This allows for a more mature system, where some psychiatrists can focus on treatment, while others give expert opinion."

Mandatory treatment orders for more offences
By Tan Tam Mei, The Straits Times, 25 Jul 2017

More offences will be eligible for mandatory treatment orders (MTOs), where offenders undergo mental health treatment in lieu of jail time, as part of the proposed legal changes.

The MTO regime will be expanded to include certain offences where sentences can carry up to seven years of imprisonment. At present, the limit is three years.

The maximum duration of MTO sentences will also be increased from 24 to 36 months, for those who need longer treatments. Amendments will also allow the court to order offenders to receive inpatient treatment at the Institute of Mental Health.

The Ministry of Law said amendments to the community sentencing regime, which includes community service orders and day reporting orders, will provide more opportunities for non-habitual offenders to be rehabilitated while remaining in the community.

Those with previous jail terms of up to three months or a previous term of reformative training will be eligible for community sentencing, if the changes are passed.

Changes will allow offenders previously sentenced to rehabilitation centres for drug or inhalant abuse to be given community sentences if their present charge differs. However, those with multiple admissions to rehabilitation centres will not be included.

The courts can also impose a suspended jail sentence with a community sentence. Upon breach of the community sentence, the suspended sentence will kick in. This will encourage compliance with the community sentence.

Most lawyers interviewed lauded the broader approach to include a wider pool of eligible offenders and offences, and give judges greater flexibility in sentencing.

Lawyer Sui Yi Siong said: "Not all cases require a period of incarceration to satisfy sentencing objectives. In some cases, harsh punishment could cause more harm, like in cases of young offenders."

But lawyer Hamidul Haq said there must also be buy-in from the prosecution, which at times "takes a hardline approach to cases". "This will have to change. There must be a balance between punishment and allowing the accused to not face the rigours of jail time if warranted," he added.

The changes will also help victims secure compensation.

Courts have to provide explanations in cases where compensation is not ordered and can order compensation for the dependants of a victim whose death was caused by an offence. Currently, compensation can be ordered only for injury to the victim.

Harder to re-open concluded criminal cases to prevent abuse of court process
Measures to prevent abuse of court process in concluded cases
By Selina Lum, Law Correspondent, The Straits Times, 25 Jul 2017

Robust gatekeeping measures are among the proposed legal changes aimed at preventing abuse of the court process and waste of judicial resources by people trying to reopen their criminal cases after exhausting all avenues of appeal.

Under the proposed procedure, a person who wants to reopen his concluded case has to first apply for leave, or permission, from the court.

Currently, there are no mechanisms to filter applications to reopen concluded cases.

The court will have the power to summarily dismiss the leave application based on written arguments, without a hearing. If leave is granted, the court hearing the substantive matter will have the power to summarily dismiss it.

Each person is allowed only one application to reopen a concluded criminal case, and no further appeal or application is allowed.

Also, to reopen a case, the arguments and evidence raised must be new and must be able to compellingly show there was a miscarriage of justice.

The defence must also show that the court decision being challenged is clearly wrong, tainted by fraud or a breach of natural justice.

The prosecution cannot make use of the procedure to overturn acquittals or seek harsher sentences, unless it is challenging decisions that have compromised the integrity of the judicial process.

The amendments give the court more control, striking a balance between preventing miscarriages of justice and the need for finality in criminal proceedings, said the Ministry of Law.

In recent years, there have been a growing number of applications seeking to reopen criminal cases. In 2015, 11 criminal motions of this nature were filed in the Court of Appeal.

Last year, convicted murderer Jabing Kho's multiple attempts to quash his death sentence were found to be an abuse of process by the Court of Appeal.

He filed an application containing a particular argument, but withdrew the argument before the hearing. After the first application was dismissed, he filed a second one, premised on the withdrawn argument, an approach described by the court as "drip-feeding".

He also mounted a "collateral attack" on the death sentence by filing a civil action. Kho was hanged in May last year.

The proposed procedure will apply where the defence's appeal has already been determined on its merits, where the Court of Appeal has confirmed the imposition of a death sentence or where the defence has failed to reinstate an appeal which was dismissed due to the absence of the accused.

Changes have also been proposed to allow the court to summarily refuse leave for an individual to file a criminal reference, a procedure in which important questions of law are referred to the apex court.

However, the decision must be unanimously made by the judges on the panel.

Public Consultation on Proposed Amendments to the Criminal Procedure Code and Evidence Act

No comments:

Post a Comment