Accused people who can't afford their own lawyers can now turn to the state for help. Lawyers support the move, but the risks are ballooning costs and abuse.
By Goh Chin Lian And Charissa Yong, The Straits Times, 21 Dec 2013
A YOUNG man charged with making a hoax phone call to emergency services could not afford a defence lawyer.
He did not qualify for the Law Society's Criminal Legal Aid Scheme (CLAS), the main recourse for Singapore's poor and needy accused of criminal offences that do not attract a death penalty.
Constrained by limited funds from private donors, the scheme covers offences under only 15 statutes. The Telecommunications Act, which the man had allegedly violated, was not one of the 15.
Unlike other cases that did not qualify for legal aid, this one had a happy ending. Criminal lawyer Anand Nalachandran took on the man's case for free, at the Law Society's request.
"He was intellectually challenged and he, his mum and his sister were in difficult circumstances, not just financially," recalls Mr Anand, 39, declining to reveal the young man's details to maintain confidentiality.
The young man subsequently received a conditional warning and the charge was withdrawn.
For decades, lawyers and MPs have pressed the Government to fund legal aid for criminal offenders and have been rebuffed - until this month. Law Minister K. Shanmugam announced that the Government will fund it, potentially benefiting 6,000 or half of the 12,000 accused persons a year.
Calling it a "clear shift" in government policy and philosophy, he said it was one of many recent changes, from universal health care to housing subsidies, to make Singapore society more inclusive and compassionate.
While governments abroad are struggling with escalating legal aid costs and scaling back aid, the Singapore Government is expanding its funding, though not without treading cautiously and putting in safeguards against abuse and runaway expenses.
Insight examines this new approach to criminal legal aid, and its costs and benefits.
Access to justice
THE push from lawyers and MPs for public funding of criminal legal aid is longstanding, as is the pushback from the Government.
The argument to ensure the poor have access to justice is pitched against that of the incongruity of expending public funds to both prosecute and defend the accused.
This was seen in a brief but pointed exchange in Parliament back in 1995, when then Law Minister S. Jayakumar crossed swords with Nominated MP Walter Woon, who would later become Attorney-General from 2008 to 2010.
Professor Jayakumar moved a Bill to delete a part of the Legal Aid and Advice Act that provided for state-funded legal aid in criminal cases.
Might he not reconsider, asked Professor Woon, who argued that poor people often could not afford a lawyer, and in the case of criminal prosecutions, could go to jail.
The only aid they could get was from the Law Society, which started CLAS in 1985. But CLAS was financed out of the generosity of members of the legal profession.
It was "paradoxical", he argued, for the Government to fund legal aid for civil cases - through a Legal Aid Bureau under the Ministry of Law - but not criminal cases where a person could lose his livelihood and freedom.
Prof Jayakumar argued that the Government spent a lot on maintaining a first-class law enforcement machinery, and invested heavily in good legal officers who carefully sieve through police papers and investigate offences for evidence to prosecute.
"It is incongruous and inconsistent that public funds should be used to defend an accused person which the state has decided ought to be charged in court and use public funds at the same time to get him off," he said.
He put it to the legal fraternity to fill the gap and fulfil its social and public role through CLAS. Parliament passed the Bill, and the provision for state-funded criminal legal aid was deleted.
But lawyers and MPs continued to raise the issue.In February, the chairman of the Government Parliamentary Committee for Home Affairs and Law, Mr Hri Kumar Nair, called for legal aid to be extended to criminal cases. He cited Subordinate Courts figures that up to 41 per cent of accused people are without counsel at the pre-trial stage.
There were cases where people pleaded guilty to an offence they did not commit simply because they could not afford the cost of a trial, Mr Nair said.
Mr Lim Biow Chuan, MP for Mountbatten, also raised the issue in Parliament last month, after feedback from criminal lawyers that CLAS is "understaffed and underfunded".
CLAS ran a deficit of $106,689 in the financial year from April 1 last year to March 31 this year, based on the Law Society's annual report. Its income of $462,930 was funded largely by proceeds from a charity golf tournament.
CLAS is not the only avenue for those who need help. People who do not qualify for CLAS may be referred by the judges to other pro bono agencies like the Association of Muslim Lawyers (AML) or the Association of Criminal Lawyers of Singapore. They could also get help at community legal clinics.
But AML president Noor Mohamed Marican knows of people who still fell through the cracks, unaware of their legal options. If they had counsel, they could have compounded their case - where the victim agrees to be compensated by the accused - or requested a probation report when mitigating factors were in their favour. Instead, they were given a jail term and some were caned.
"By the time we knew of their case, it was too late to help them," Mr Marican says.
What price, compassion?
THE policy change is in keeping with other reforms since the watershed 2011 General Election, butmore state funding for criminal legal aid raises questions of how much more to pay and for how long.
It is a hot-button issue abroad.
The Singapore Government's share of criminal legal aid is currently small.In the last financial year, it gave $824,215 to cover the operating cost of the Law Society's Pro Bono Services Office.
While no amount was given for the new funding measure, a sense of proportion can be derived from CLAS' current expenditure.
It spent $569,619 in the financial year from April 1 last year to March 31 this year, with about three-quarters on staff salaries and bonuses, and support services to run the scheme. Over the reporting year from Aug 1 last year to July 31 this year, CLAS processed 1,304 applications and granted aid to 335 applicants.
Separately, it provided legal representation to 17 Community Court cases and gave legal advice in 36 cases involving unrepresented accused people in remand.
With direct public funding, CLAS is expected to help 6,000 accused people, many times the current workload.
Society will have to decide how it prioritises spending for criminal legal aid, among other competing needs like health care.
Helping more people
CRIMINAL lawyer Josephus Tan thinks society, though still largely conservative on criminal legal aid, is changing. "As our society progresses, people are better informed and many of them know that in all good conscience, the society cannot deprive the underprivileged accused person (of) legal representation."
Providing more funding is also consistent with the push to make sure no one gets left behind, no matter what their situation, says Mr Tan, the incoming Law Society council representative for CLAS.
He adds: "If we have policies to assist the underprivileged people in areas such as housing, health care and education, then why not for the underprivileged person charged with a criminal offence?"
Lawyers see the change as also one of many incremental reforms to level the legal playing field for the disadvantaged.
Criminal law professor Michael Hor of the National University of Singapore points to reforms such as a major change in criminal discovery - the right of the accused to have advance notice of the evidence against him or her - and a move towards greater discretion in death penalty sentencing.
All developed systems of criminal justice must deal with the high possibility of a serious imbalance of resources between the prosecution and the defence, he notes.
"In Singapore, which is both affluent and highly 'order-conscious', generous resources are allocated towards law enforcement. That is as it should be.
"But the other side of the equation is the accused person, who is, it must be remembered, innocent until proven guilty, and even when found guilty, entitled to no more punishment than is proportionate and appropriate, but who is expected to rely on his or her own personal resources to conduct a defence or a mitigation."
But for CLAS to truly benefit the disadvantaged, it has to cover more people by plugging the gaps on two counts, lawyers say.
One, expand the list of criminal offences eligible for aid, or drop this criterion altogether. Currently, only offences that fall under the 15 statutes, such as the Penal Code and Misuse of Drugs Act, are covered. These include theft, robbery, unlawful possession of arms, vandalism, drug offences and rioting .
The increased funding should cover crimes like loan-shark related cases, from illegal moneylending to harassment, which fall under the Moneylenders Act. Runners who are young, lowly-educated and already in debt are likely candidates in need of legal aid.
Lawyers like Mr Anand and Mr Marican would rather not limit aid to the type of offence: The test should be whether the person is in need or based on the unique circumstances of each case.
Second, cover those who plead guilty, lawyers say. Currently, they are not covered, except those between 16 and 18 years old, or suffering from mental illness or intellectual disability.
Mr Marican notes that without legal advice, a person who pleads guilty will be unable to prepare an appropriate mitigation plea or letters of representation to seek a reduction in the charge.
He also may not appreciate the value of a medical or psychiatric report that may reduce his responsibility in committing an offence.
Law Society president Lok Vi Ming says the society is looking to expand CLAS coverage on both counts, to include other serious offences as well as more plead-guilty cases, "especially when presence of defence counsel could make a significant difference to the sentence the accused person would otherwise receive".
No blank cheque
INCREASING coverage will invite more applications for help, and more aid will be given out.
But the Government says it will not write a blank cheque even as it gives more.
Here, a clear framework will ensure the money is properly spent and not abused. Help will be differentiated in four tiers. On the first tier, all accused people are told of the avenues for legal advice. On the second tier, those who may face a jail term get basic legal advice.
The third tier of help extends to writing letters of representation to the Attorney-General's Chambers and preparing mitigation pleas. The fourth tier involves a lawyer defending the accused in court.
While 6,000 people are estimated to benefit, only 3,000 are expected to get third-tier help, and a smaller 1,000 within this 3,000, the fourth tier.
Another safeguard will be an independent Criminal Legal Assistance Steering Committee, chaired by a High Court judge with representatives from the courts, the Law Society and the Law Ministry.
They will oversee the type of offences for which aid is granted, the means testing to ensure those who truly cannot afford to get a lawyer receive aid, and a merits scheme that ensures funds are used to defend only reasonably deserving cases.
While attention is given to ensure no person deserving of aid falls through the cracks, Professor Hor says the Government's concerns should also be to ensure that public money is not spent on "unmeritorious defendants engaging in expensive and unnecessary litigation tactics just because the Government is footing the bill".
Veteran criminal lawyer Edmond Pereira suggests making people pay a token sum, so that the help given does not breed a free legal aid culture.
Pay lawyers more for help?
THE other controversy that has reared its ugly head abroad is the issue of paying lawyers to help the poor.
Indeed, some public funds in the latest measure will pay for honoraria or disbursements for lawyers. The question is how much is appropriate and publicly acceptable.
Here, most lawyers offer their services pro bono. In the financial year from April 1 last year to March 31 this year, disbursements charged by volunteer lawyers for CLAS came to $23,233. Based on an average of 200 to 300 cases a year, the average disbursement is not even a couple of hundred dollars.
But there is pressure to pay them more, to keep them serving and to attract others to join in.
Mr Marican says lawyers hope that the enhanced CLAS will be run in a similar fashion as the Legal Aid Bureau, where lawyers helping with civil cases may render untaxed bills up to $1,000 for each case. "This is a crucial factor which will encourage more lawyers to come forward to close the justice gap."
Having sufficient manpower to take up the criminal cases is part of a larger issue of getting lawyers to serve the community.
Last year, the Singapore Academy of Law even floated the idea of mandating 16 hours of free legal services a year for all lawyers, which the legal fraternity resisted, pointing to the contradictions of mandating volunteerism.
CLAS chairman Abraham Vergis is looking to more lawyers, particularly from large firms, to take up the cause.
But Mr Pereira warns against going to the other extreme of allowing lawyers to charge high fees for criminal legal aid, as in Britain where offences under the Terrorist Act drag on for years.
"We don't want to see a situation in England, where legal aid representation is business, law firms can survive on it, and billings can rake up to a quarter of a million pounds a year," says the former deputy public prosecutor and former district judge.
Law Society's Mr Lok notes: "Issues of sustainability of legal aid in other countries typically concern legal aid models with legal counsel being paid at or close to normal professional rates for representation.
"The envisaged model for Singapore moving forward will be to leverage the pro bono spirit of our lawyers and one of our priorities is to encourage that spirit in as many lawyers as possible."
Office of Public Defender?
ANOTHER approach is to set up an Office of the Public Defender within the Government, like in the US. The office will have its own lawyers to defend the disadvantaged charged with criminal offences, on a par with the public prosecutor.
It is also a position that was envisaged in the original 1956 legislation, with a director of legal aid handling both civil and criminal cases, separate from the Attorney-General.
Then Minister of Social Welfare Lim Yew Hock, in moving the Bill that enacted it, argued that it should not be the state's primary aim to obtain convictions.
"The real aim of any judicial system is to arrive at the truth and to mete out justice. The director of legal aid, by supplying the proper balance, will assist in achieving this aim," he said.
An important measure of any justice system must surely be its fairness to both the haves and have-nots in society. The move to increase state funding for criminal legal aid has been a change worth fighting for, and one worth fighting to keep, in the face of many competing demands for public funds.
Criminal legal aid scheme: Now and future
What it is:
- Run by Law Society to offer legal help to the poor and
- needy in criminal offences that do not involve capital punishment.
- For offences under 15 statutes, such as theft, rioting and drug use.
- About 200 active volunteer lawyers provide representation or give legal advice.
- About 1,000 applications a year; 200 to 300 applicants qualify for aid.
To qualify, applicants must:
- Not plead guilty. Exceptions are made for those between 16 and 18 years old, or with mental illness or intellectual disability.
- Pass a means test: Single applicants must earn less than $1,300 a month. Married applicants must have a combined income of less than $1,700 a month. If the married applicant has dependants other than the spouse, a $160 allowance is added to the $1,700 monthly ceiling.
Changes to come:
- Direct state funding for CLAS, to support processing and granting of aid, and disbursements for volunteer lawyers
- Independent panel chaired by High Court judge to oversee policies on funds disbursement.
- Law Society looking to extend aid to more types of offences and to some who plead guilty.
- An estimated 6,000 people a year to benefit.
FAIR, PRUDENT, SUSTAINABLE APPROACH
We have to develop a system that is fair, prudent and sustainable right from the start... (This approach) represents a clear shift in policy and philosophy for the Government. This is in keeping with the other changes being made, as our society matures and changes. It is also in line with the views that have been expressed to us by nearly 50,000 Singaporeans during Our Singapore Conversation. And the changes have to be seen as part of a larger context (for) a more inclusive society, a more compassionate society.
– Law and Foreign Affairs Minister K. Shanmugam, on State funding to expand legal aid to the accused in criminal cases who cannot afford a lawyer
LEVERAGING ON PRO BONO SPIRIT
Issues of sustainability of legal aid in other countries typically concern legal aid models with legal counsel being paid at or close to normal professional rates for representation. The envisaged model for Singapore moving forward will be to leverage on the pro bono spirit of our lawyers, and one of our priorities is to encourage that spirit in as many lawyers as possible.
– Law Society president Lok Vi Ming. The society runs the Criminal Legal Aid Scheme (CLAS), which will get direct State funding
MORE TO BENEFIT FROM LEGAL ADVICE
It is crucial that accused persons are aware of their legal rights and the sentencing options in court, for example, pleading for a minimal fine, calling for a probation report or (knowing) their chances of being granted an acquittal upon claiming trial. With this increase in funding... more criminal litigants will benefit from receiving legal advice.
– Association of Muslim Lawyers president Noor Mohamed Marican
How Britain, New Zealand and Hong Kong dole out criminal legal aid
By Charissa Yong, The Straits Times, 21 Dec 2013
IN 2008, tycoon fraudster Virendra Rastogi received more than £5 million in legal aid, despite holding the keys to a £6 million seven-bedroom flat in the swanky London district of Mayfair.
He was able to exploit a loophole in British legal aid system, under which frozen assets were not included when assessing a suspect’s wealth.
Taxpayers were further angered that Rastogi, then 39, was driven to a British court every day by a chauffeur.
Two other tax fraudsters who were jailed in 2007, Syed Ahmed and Shakeel Ahmad, aged 40 and 41 respectively, received legal aid of at least £100,000 each.
This was while they both lived in swanky multi-million dollar homes they owned in posh neighbourhoods like Hyde Park. They also owned two tower blocks in Dubai and luxury cars including a Ferrari and a Porsche.
After the public outrage against such wealthy individuals abusing the system, the British authorities moved to plug the loophole in March, so that all assets are taken into account and frozen assets can be used to pay suspects’ defence lawyers.
Even as Singapore expands its Criminal Legal Aid Scheme, Law Minister K. Shanmugam said a fortnight ago that the country must “set in place a clear framework to make sure the money is well spent, properly spent and not abused”.
In general, countries have adopted various ways of limiting legal aid to lower-income individuals and to certain types of cases.
Britain relies on a merit test to decide whether a case is in “the interests of justice”.
Criteria include whether the suspect is likely to lose his liberty and livelihood, or is unable to present his own case.
Those who pass this test must also clear another hurdle: a means test. The general cap for qualifying for free legal aid is an annual income of up to £12,475 (S$25,822) a year, excluding deductibles.
In New Zealand, the financial situation of the person charged as well as one’s partner, and the value of assets like property and vehicles, are taken into account.
Legal aid is also usually unavailable for less serious charges with jail terms of below six months, which duty solicitors can help with.
Hong Kong, too, takes into account assets such as cash, savings, antiques and property when assessing whether an applicant qualifies for legal aid.
However, it excludes the home an applicant owns and lives in, as well as personal clothing and household furniture.
Hong Kong reviews the qualification criteria once every five years.
Legal aid has helped to ensure that the poor can still have access to fair and open justice, said Britain’s top judge Lord Neuberger in October.
“Legal advice and representation cost a lot more than most people can afford,” said the Supreme Court president.
“Cutting the cost of legal aid deprives the very people who most need the protection of the courts of the ability to get legal advice and representation.”
Due to national budget deficits and high costs, several countries with criminal legal aid systems that have been in place for years are now moving to trim funding.
About half of Britain’s annual £2 billion legal aid bill goes towards criminal defence, and the authorities want to scale back the total figure by £200 million over five years.
One proposal was having flat fees, to prevent situations where fees escalate for those cases which run on for years.
New Zealand adopted a similar proposal in an effort to rein in ballooning legal aid costs. Its tab rose from NZ$111 million in 2006 to 2007, to NZ$173 million three years later.
The current financial means test for criminal legal aid, however, was deemed suitable and went untouched in the end.
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