Boy’s death – a police review of procedures not enough

courtThe death of a 14-year old boy now puts the question of access to lawyers for an accused at the doorstep of Parliament.

The boy, a secondary three student, had apparently committed suicide after being interviewed by the police for an alleged offence of “molestation”. That was the offence he is deemed to have committed, according to the police statement released on 1 February 2016. (See here.)

The police also said that it “will review and address” the issue of whether “to allow an appropriate adult to be present when a young person is interviewed.”

First, let us be clear about one thing: no one knows exactly why the boy took his own life. Any suggestions on the reasons are at best speculation at this point in time, given that police investigations are still ongoing; and that eventually the coroner would also have to weigh in on the matter.

So, let us hold off on the finger pointing, especially that directed at the police. It would be most unfair to lay the blame squarely on the shoulders of the police officers involved.

Second, there have been suggestions that the offence of molest is a non-seizable (arrestable) one. This point was raised seemingly to cast blame on the police officers who had reportedly arrested the boy in his school. (According to news reports, the boy was later released on bail.)

This too is inaccurate.

“Molest” is equated with the offence of outrage of modesty, and depending on the definition or the actual act of offence, it can be an arrestable offence.

The Singapore Legal Advice website explains:

“The use of the term “outrage of modesty” originates from section 354 of the Penal Code which criminalises the offence of  the “assault or use of criminal force to a person with intent to outrage modesty“. The use of criminal force is a key element.”

And further:

“As for what it means to actually outrage someone’s modesty, there appears to be no easy answer to this question. The Penal Code does not expressly define ‘modesty’. This may be partly because views about what constitutes an outrage to modesty may vary over time and according to the context in which the incident occurs, as well as the race or religion of the victim.”

And importantly, even if an offence is non-seizable, it does not mean the police cannot arrest the perpetrator:

“For non-arrestable offences, the police cannot make any arrests without a warrant.”

In other words, for non-arrestable offences, the police can arrest you provided they have a warrant to do so.

Now, those are two points about the specific case of the boy.

Let us now turn to the third point, which some have raised – that of allowing an accused access to lawyers or legal counsel.

The Law Society of Singapore (LawSoc) has, the last few years, been consistently calling for such access to be granted.

In his speech at the opening of the legal year in January, LawSoc president, senior counsel Thio Shen Yi, repeated the call.

SC Thio said such a right “is itself a manifestation of the rule of law.”

In Singapore, however, such a right is not one of immediate access upon arrest. Instead, it is to be given only “within a reasonable time”, as the Court of Appeal (CA) reinforced in May 2014. The CA said this was “settled law” and dismissed the application made by lawyers M Ravi and Eugene Thuraisingam for access to their client, James Raj.

“The practical application  of  “reasonable”  is  fraught  with  ambiguity,  there  is  inherent elasticity in the idea,” SC Thio said in his speech.

While the police must be allowed to do their jobs effectively, this must be balanced against the rights of an accused, the senior counsel added.

“[An] accused may be detained for days, or even weeks, without access to a lawyer,” he said. “We need to re-evaluate whether this is fair or desirable.  From the Bar’s perspective, the aspiration is access to counsel sooner, rather than later. It is a positive externality, its availability encourages public respect for our Criminal Justice System, and its absence, doubt in its fairness.  In this, we are all stakeholders.”

You can read the transcripts of his speech here.

SC Thio, however, is not the only one making the call.

In a 2013 paper, titled “The Privilege against Self-incrimination and Right of Access to a Lawyer: A Comparative Assessment”, law professor Ho Hock Lai of the Law Faculty at the National University of Singapore, made the same points.

Prof Ho compared the practice in Singapore and elsewhere in the world, and highlighted the deficiencies in the former.

For example, he said that unlike in other countries where the police must inform the accused of his right to counsel at the point of arrest, such a thing is not required of police officers here.

“In Singapore, the right to a lawyer is constitutionally entrenched,” Prof Ho wrote. “But, as the constitutional provision has come to be interpreted, the accused need not be informed of this right and he has no right to exercise it immediately upon arrest.”

Prof Ho also said that the law in Singapore provides for the right against self-incrimination, where an accused can remain silent. However, if he does so, an adverse inference may be deduced against him in court or during his trial.

He explained:

“In determining what counts as a “reasonable” period, the protection of the accused, his need for legal advice and the importance of the right against self-incrimination are not ranked as highly as they should be and as they are under internationally respected standards.”

It is well worth reading Prof Ho’s paper. Click here.

Finally, SC Thio said “[the] need for Counsel is amplified given that an accused can be convicted on the evidence of their confession alone, even if they subsequently recant.”

“The trial should not start at the police station. We do not believe that early access to counsel will preclude an effective and fair investigation. They are not trade- offs.”

He added, “Investigating   authorities   must   therefore   audit   their   mind-sets periodically. To the extent that the reluctance to allow quicker access to Counsel is predicated on a worldview that lawyers are unethical or may hinder or obstruct an effective investigation; that assumption must change.”

So, while it is all very well that the police is now reviewing its procedure vis a vis police interviews of accused persons, it is the law itself which should be made explicitly clear – to grant immediate access to accused persons at the point of arrest and that such a right be made known to the accused.

The courts have no power to change laws, but only to interpret them. And the CA has upheld earlier court decisions that immediate access to lawyers is not a constitutional right.

This runs counter to international standards and practice, and is also fraught with inconsistencies (as pointed out by prof Ho and others), with rights – such as the one against self-incrimination – rendered useless by other provisions.

Parliament should change this, in light of what has happened not only to the 14-year old student, but also what had happened to 16-year old Amos Yee (who was held in remand for a total of 50 days, in both Changi Prison and at the Institute of Mental Health), James Raj and many others, in fact.

While a review of police procedures during an interview is welcome, it is however not enough.

The change must be substantive and in the law.

Singapore should catch up to international standards in granting such rights to its citizens.

It is time for Parliament to heed the call and to act on this.

*Post-script: Do note that the police’s review is only limited to an accused who is a “young person”, and only on whether “an appropriate adult” should be allowed to be present during an interview. There is no mention of access to lawyers or legal counsels. The right to access to counsel should, in fact, be extended to all.

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