16 October 2006

Big Change in Criminal Procedure

Here comes a huge change in our criminal legal system. Unfortunately due to work pressures, I won't be commenting as of now. I hereby post the article first, and will comment when I find the time.

Oct 16, 2006
Prosecutors to reveal all in proposed new law
Defence lawyers will have access to evidence against their clients before cases go to trial

By Ben Nadarajan

STATE prosecutors will soon be compelled to reveal all the evidence they have against an accused person before the case goes to trial.

The Straits Times understands the law is set to be changed to make it compulsory for prosecutors to share their evidence with defence lawyers.

This will settle the regular complaints from lawyers that they are handicapped at trials because they are not fully apprised of all the evidence early enough.

According to sources, Law Minister S. Jayakumar sent a letter to the Law Society a few months ago, giving his in-principle agreement to such a change.

The minister's letter was in response to a policy paper submitted a year ago by the society's Criminal Practice Committee, headed by veteran lawyers Peter Low and Chia Boon Teck.

Both the Law Ministry and Law Society declined to confirm the change, which could also be enacted without a change in legislation.

The Attorney-General's Chambers could change its practice guidelines instead, and effectively usher in the new procedure.

One of the committee's concerns was the uneven playing field in the area of disclosure of evidence.

As it stands now, prosecutors do not have to show their hand until the trial begins, giving lawyers little time to prepare counter arguments for cross-examination.

This does not happen in High Court trials, where all relevant statements and documents are revealed to defence lawyers before the trial during a preliminary inquiry.

In civil cases, both parties are also required to furnish all relevant information sought by the other side.

Lawyers have asked for a similar practice to be adopted in matters before the Subordinate Courts, which handle about 95 per cent of all cases.

In particular, they want copies of documents like police statements obtained from the accused and witnesses.

While criminal lawyers appear to have got their way on this matter, another request, for early access to their clients, has fallen through.

Police do not allow defence lawyers to see their clients until investigations are over, a process which can take weeks, or sometimes even over a month.

Lawyers argue that this infringes an accused person's right to counsel.

When the issue came up in Parliament last year, Home Affairs Minister Wong Kan Seng defended the practice, saying that allowing accused persons instant access to lawyers could hinder or compromise investigations.

It is understood that the authorities are satisfied that there are checks in place to ensure that an accused person is not held in remand for longer than necessary.

Nevertheless, a study is under way to determine whether prisoners claiming trial are kept in lock-up for too long.

When informed of the change, the president of the Association of Criminal Lawyers, Mr Subhas Anandan, welcomed the 'long overdue' move.

Describing the job of a defence lawyer now as a boxer fighting blindfold, Mr Subhas said sharing information with the defence was a given in countries like the United Kingdom, the United States and Australia.

'In these countries, if the prosecution does not give everything to the defence, it is grounds for a mistrial. Here, we don't even get our own client's statement to the police.'

He repeated the call for earlier access to counsel, saying clients needed to be informed that they had the legal right not to say anything incriminating to the police.

Law lecturer Michael Hor said early access to counsel might detract from the police force's efficiency in solving crime, but would mean a 'significant increase in the legitimacy of the process'.

He added: 'The reality is that once incriminating statements are successfully extracted, any sort of defence at the trial is unlikely to succeed.'

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Anonymous said...

With regards to the availability of counsel during investigation, I tend to be of the opinion that if the suspect is telling the truth, it doesn't matter whether or not he has legal advice during the police investigation. The only people who would need legal advice are those who have something to hide (and are most likely guilty and deserving of prosecution).

Of course, it is possible that the truth would incriminate a person even if he was really innocent. But if so, then that is another bigger problem in the justice system, and allowing a suspect legal advice during the investigation would not be attacking the root of the problem.

Anonymous said...

actuallu maori, in the judiciary landscape, having the right to lega counsel should be a taken right. After all we are talking about ethics over here.

I presume that you are holding the philopsophy that is opposite to 'the suspect is innocent, till proven guilty' over here?
In any case, the suspect has to have access to legal rights because the layman has limited knowledge of legal terms. True, that he/she may have killed somebody. But there is a whole lot of difference between what is murder in 1st degree, manslaughter, self-defence etc. The job of the prosecuter is to prosecute the suspect held in custody, therefore, the suspect must have the rights to have legal access so that he/she is to understand the legal process better and know what he/she is in for.

Anonymous said...

i am of the opinion that remaining silent and legal advice is important because an individual has a right to not incriminate himself or herself.

There are some methods which the police normally resorts to in order to "extract" statements from suspects. The police could simply say "I know everything, tell us the truth". Sounds ridiculous? But when you are in a state of panic (not everyone of us are interogated so often), you incriminate yourself. Is this fair? I shall leave that to you. (assuming laws are just....)

"I tend to be of the opinion that if the suspect is telling the truth, it doesn't matter whether or not he has legal advice during the police investigation."
If this is the case, then many lawyers would be jobless. The job of a lawyer is guide you through the judiciary and the criminal justice system, not there to help you break the law. In fact, they do not take responsibilities if you lie in your representations to AGC or in your mitigation. Perhaps maori has watched too much courtroom drama?

If engaging a lawyer means that a suspect has something to hide, then perhaps representation by a lawyer would be an issue in deciding the guilt of an accused?