11 December, 2018
The Criminal Procedure Code ("CPC") provides the framework for criminal investigations and the procedure for criminal hearings, and the Evidence Act ("EA") provides the framework for all matters concerning evidence in court. On 19 March 2018, the Criminal Justice Reform Act 2018 and the Evidence (Amendment) Act 2018 were passed in Parliament to amend the CPC and the EA. The amendments, which relate to the powers of investigators and other powers of the court, seek to enhance the fairness of existing procedures and ensure the accuracy and equity of outcomes in the criminal justice system. Changes to the CPC and EA have come into force progressively since 17 September 2018.
Some of the key amendments relevant to criminal investigations include:
- Investigative agencies now have enhanced powers to seek access to information stored on a computer, including cloud services.
- Introduction of video recording of interviews. While the current amendments only allow for video recording of interviews of suspects of rape offences, a phased approach has been taken and this will be extended to video recording of interviews in other instances.
- Introduction of Deferred Prosecution Agreements ("DPA"), where prosecutors can enter into DPAs with corporate offenders and agree not to prosecute in exchange for compliance with a set of conditions.
We discuss these amendments and their impact below.
Impact of CPC changes on the conduct of criminal investigations
Investigative agencies' computer-related powers of investigation
Under the previous regime, investigative agencies had the power to access, inspect and search data on computers. These powers are clarified under the present law, where investigators will have the power to:
- order the production of evidence stored on computers (including computers stored outside of Singapore, such as servers of cloud service providers);
- order a person to provide login credentials to a computer or a cloud services account; or
- prevent a person from accessing a computer or account by changing its password or by other means.
Safeguards and limitations will be in place in respect of computers outside Singapore. For example, investigators can only exercise their powers over such computers when access has been granted to them:
- by a person legally authorised to do so;
- by a person who has access and investigators reasonably suspect of having used the computer in connection with an arrestable offence; or
- if access to the computer can be obtained by information stored on a device which has been properly seized in accordance with proper criminal procedures.
Video recording of interviews
Previously, the CPC required all statements to be in writing. Changes have now been made to allow for video recording of statements. This will be implemented in phases, starting with interviews of suspects in specified rape offences, where the video recording of such interviews is mandatory. The next phase will then be rolled out to video recording of victims' statements, and possibly to vulnerable suspects or suspects of other offences.
Evidence in the form of video recordings will enable the court to adjudicate on the weight of the evidence, as these recordings objectively reflect the flow of the interview and the demeanour of the interviewer and the interviewees at the material time. Video recordings can also minimise trauma faced by vulnerable victims of crime, who may otherwise have to recount their ordeal several times.
Safeguards will be put in place to prevent unauthorised use of the video recordings and guidelines will be introduced to ensure that video recordings are not used inappropriately. These include prohibiting defence counsel from taking copies of the recordings, to prevent them from being leaked or misplaced.
Introduction of deferred prosecution agreements (DPA)
DPAs are a formal framework for Prosecutors to enter into with corporate offenders whereby they agree not to prosecute a corporate entity if it complies with specific conditions. For instance, the Prosecutor may require a company to produce documentary evidence or assist in investigations against its former managers and directors. Prosecutors may also make a condition that the company undertakes corporate reform measures. Corporations would avoid criminal conviction if they meet the conditions of the agreement, but could pay much higher fines than they would have before the law was amended.
DPAs are fully voluntary and will only apply to corporate offenders represented by counsel. The terms of the DPAs have to be approved by the High Court and published, but the court does not have a duty to give reasons for their approval. This is because a DPA, unlike a court judgment, is not meant to set a precedent for future DPAs and has no binding effect.
Comments
The amendments clarify the powers that investigative and law enforcement agencies have in the conduct of their investigations, and assist in facilitating the investigative process. For individuals and multinational corporations who may be the subject of these investigative and enforcement efforts, these amendments are also instructive as to the level of cooperation that they will be required to give to the officers of these agencies. Corporations may consider reviewing their compliance and investigations policies in light of the amendments.
The DPA regimes in the United States and the United Kingdom have been effective in encouraging voluntary cooperation from corporations in investigations, and in motivating these corporations to improve and enhance their compliance programs. It is hoped that the DPA regime in Singapore, will have the same effect and be a positive development towards the city's overall efforts at combating corruption and raising standards of corporate compliance.
When the Ministry of Law first issued the public consultation on proposed amendments to the CPC and EA in July 2017, amendments were also proposed to clarify the issue of whether legal professional privilege can be asserted in the context of search and seizure by police and other regulatory authorities in the course of their investigations. However, these legislative amendments were not introduced following feedback received through the public consultation. Instead of dealing with the issue by way of amendments to the CPC and EA, the Ministry of Law has indicated that a Code of Practice will be agreed upon among the Attorney-General's Chambers, law enforcement agencies, and the Criminal Bar to deal with legal professional privilege issues in criminal investigations. The clarification as to the scope and applicability of privilege in investigations will be welcome, as the position under Singapore law is not clear and different approaches have been taken in other common law jurisdictions.
Our client alerts on the cases relating to the issue of legal professional privilege in investigations are accessible below.
Legal Advice Privilege: Risks for the Unwary (Link)
UK Court of Appeal Moves to Protect Legal Professional Privilege (Link)
For further information, please contact:
Celeste Ang, Baker & McKenzie.Wong & Leow
celeste.ang@bakermckenzie.com
