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Tuesday, 3 March 2009
Give judges more leeway in criminal cases, say counsel
Judges should have more say when it comes to handling criminal cases and be allowed to vary sentences in appropriate cases, lawyers here have said in their feedback to the proposed changes to the Criminal Procedure Code.
Give judges more leeway in criminal cases, say counsel
By Khushwant Singh 3 March 2009
Judges should have more say when it comes to handling criminal cases and be allowed to vary sentences in appropriate cases, lawyers here have said in their feedback to the proposed changes to the Criminal Procedure Code.
For example, it should be up to a judge to decide whether a life imprisonment term really means a person is kept locked up until he dies or to any other fixed term, the Law Society’s report said.
The current ‘inflexible definition’ of life imprisonment leaves no room to consider mitigating factors such as the different degrees of culpability. At present, a life imprisonment term usually means at least 20 years behind bars, after which the offender is considered for release by the Life Imprisonment Review Board.
The Association of Criminal Lawyers (ACLS) also suggested that the Court of Appeal, the country’s highest court, should be able to waive the mandatory death penalty if one of the three judges finds the accused innocent of the capital offence.
This happened in the case of child murderer Took Leng How. In 2006, the Court of Appeal had a rare split decision, with one judge ruling that the prosecution had failed to prove murder, and the most Took was guilty of was a much lower offence of voluntarily causing hurt. As Singapore’s judicial system works on a majority decision, the views of the dissenting judge had no bearing on the eventual verdict, and Took kept his place on death row.
The Law Society also called for the shackles to be taken off judges when imposing sentences for reformative training, corrective training and preventive detention. All presently have a prescribed range of detention, and lawyers would like judges to be given more leeway.
Both the Law Society and the ACLS took issue with the proposal to let the Attorney-General’s Chambers have the final say when deciding if an offence can be compounded or not.
To compound an offence means an accused person pays the victim compensation for the offence, and the criminal charge is dropped and does not form part of the person’s criminal record.
This is allowed only in certain crimes such as simple molestation cases and causing hurt, and can go ahead only if the victim is willing. Currently, a judge can decide not to allow an offence to be compounded, even if the victim and the prosecution give the nod.
The proposed changes leave the decision with the prosecution and offer no avenue for appeal.
The Law Ministry, in its consultation paper on the proposed changes to the Code, said the public prosecutor should be the person to decide on composition matters as he has ‘control and direction over all criminal proceedings’ and is able to assess each case after taking into account public interest.
The ACLS report said vesting this power with the prosecution will ‘blur the lines and confuse the roles’. The Law Society also said the power and discretion should stay with the courts, rather than the prosecutor.
Assigning this task solely to the prosecutor was ‘undesirable’. ‘Once the matter is before the court, the court’s role in resolving the matter by compounding is an indispensable one,’ the report said.
The Law Society welcomed other sentencing options such as expanding the community service order and conditional discharge, for which views were sought but which have not been included in the draft Code.
Lawyers said that where appropriate, community service and a conditional discharge could also be considered for offenders above 21 years of age, which is the limit now.
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Give judges more leeway in criminal cases, say counsel
By Khushwant Singh
3 March 2009
Judges should have more say when it comes to handling criminal cases and be allowed to vary sentences in appropriate cases, lawyers here have said in their feedback to the proposed changes to the Criminal Procedure Code.
For example, it should be up to a judge to decide whether a life imprisonment term really means a person is kept locked up until he dies or to any other fixed term, the Law Society’s report said.
The current ‘inflexible definition’ of life imprisonment leaves no room to consider mitigating factors such as the different degrees of culpability. At present, a life imprisonment term usually means at least 20 years behind bars, after which the offender is considered for release by the Life Imprisonment Review Board.
The Association of Criminal Lawyers (ACLS) also suggested that the Court of Appeal, the country’s highest court, should be able to waive the mandatory death penalty if one of the three judges finds the accused innocent of the capital offence.
This happened in the case of child murderer Took Leng How. In 2006, the Court of Appeal had a rare split decision, with one judge ruling that the prosecution had failed to prove murder, and the most Took was guilty of was a much lower offence of voluntarily causing hurt. As Singapore’s judicial system works on a majority decision, the views of the dissenting judge had no bearing on the eventual verdict, and Took kept his place on death row.
The Law Society also called for the shackles to be taken off judges when imposing sentences for reformative training, corrective training and preventive detention. All presently have a prescribed range of detention, and lawyers would like judges to be given more leeway.
Both the Law Society and the ACLS took issue with the proposal to let the Attorney-General’s Chambers have the final say when deciding if an offence can be compounded or not.
To compound an offence means an accused person pays the victim compensation for the offence, and the criminal charge is dropped and does not form part of the person’s criminal record.
This is allowed only in certain crimes such as simple molestation cases and causing hurt, and can go ahead only if the victim is willing. Currently, a judge can decide not to allow an offence to be compounded, even if the victim and the prosecution give the nod.
The proposed changes leave the decision with the prosecution and offer no avenue for appeal.
The Law Ministry, in its consultation paper on the proposed changes to the Code, said the public prosecutor should be the person to decide on composition matters as he has ‘control and direction over all criminal proceedings’ and is able to assess each case after taking into account public interest.
The ACLS report said vesting this power with the prosecution will ‘blur the lines and confuse the roles’. The Law Society also said the power and discretion should stay with the courts, rather than the prosecutor.
Assigning this task solely to the prosecutor was ‘undesirable’. ‘Once the matter is before the court, the court’s role in resolving the matter by compounding is an indispensable one,’ the report said.
The Law Society welcomed other sentencing options such as expanding the community service order and conditional discharge, for which views were sought but which have not been included in the draft Code.
Lawyers said that where appropriate, community service and a conditional discharge could also be considered for offenders above 21 years of age, which is the limit now.
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