COMMENT: Reforms to police investigations are both urgent and necessary
Police car (Yahoo file photo).
Imagine that the police have shown up at your door. You’re invited – or “invited” – back to the station for an “interview”. You’re alone, and you don’t get to call a lawyer.
Do you know your rights? Would you know what to do?
Interrogations can be stressful situations. It’s easy to get flustered, or to panic. Even the most well-educated, mature individual could feel pressured into admitting something he/she hasn’t done. In the February issue of the Singapore Law Gazette, senior counsel and Law Society president Thio Shen Yi delivered a strong message in favour of more protections for accused persons.
“I continue to believe that near immediate or at worst, early access to counsel is a necessity in ensuring sustainable confidence in our criminal justice system,” he wrote. “ It cannot be the case that our well-trained, well-resourced, first world police force will be stymied in their investigations by something as anodyne as the presence of parents or lawyers.”
The tragedy of Benjamin Lim’s death has drawn our attention to issues with how investigations are carried out. The police themselves have announced that they will review their procedures in relation to investigations involving young persons. But as Thio argues, this goes far beyond just Benjamin Lim, or other young persons. Broader reform is both urgent and necessary.
Many of us were stunned to learn that there is no requirement for minors to be accompanied during interrogation. But the lack of almost immediate or early access to legal counsel has many more dangerous implications.
According to Section 23 of the Criminal Procedure Code, once an accused person is charged with an offence, he/she must be served with and have read to him/her the following:
“You have been charged with [or informed that you may be prosecuted for] _____. Do you want to say anything about the charge that was just read to you? If you keep quiet now about any fact or matter in your defence and you reveal this fact or matter in your defence only at your trial, the judge may be less likely to believe you. This may have a bad effect on your case in court. Therefore it may be better for you to mention such fact or matter now. If you wish to do so, what you say will be written down, read back to you for any mistakes to be corrected and then signed by you.”
How should one react upon hearing this? At this point in time, it is unlikely that the accused has access to his/her legal counsel. Yet the person is being told that keeping silent could have an adverse effect on his/her case at trial.
But that’s not all; other aspects of police investigations are a cause for concern and emphasise the need for early access to legal counsel.
I recently read the High Court judgment of a drug trafficking case, in which one of the co-accused was sentenced to death. The court judgment stated that although it was “ideal” for statements to be recorded verbatim, there is actually no requirement for investigating officers to do so:
Source: Public Prosecutor v Christeen d/o Jayamany and another
Allowing statements to be paraphrased rather than set out verbatim is poor practice. While verbatim statements provide a clear transcript of exactly what was or was not said, paraphrased statements open up the possibility of subjective interpretations, omissions or additions (whether intentional or not), and all sorts of allegations of misconduct.
Yes, one has the right to make amendments to a statement before signing it. But do we really expect an accused person in an interrogation to have the clarity or calmness of mind to be able to anticipate every aspect of how his/her statement could affect the case further down the line? Again, there is no lawyer present at this point in time to provide any legal advice, or to ensure that the accused person’s rights have been fully protected. Surely it is in everyone’s interest – and also beneficial to the entire criminal justice system – to require that all statements be recorded verbatim?
Disputes over statements have serious implications. Vignes Mourthi, a young Malaysian in his early twenties, was executed in 2003. His conviction had relied heavily on a handwritten note provided by a Sergeant Rajkumar, the investigating officer. Sgt Rajkumar claimed that the note was a record of a conversation between him and Mourthi, in which the accused allegedly admitted that he knew he was trafficking heroin. The note was unsigned and undated, but was accepted as evidence that led to Mourthi’s death. It emerged after the execution that Sgt Rajkumar himself was being investigated for rape, sodomy and bribery – a fact that had not been disclosed to Mourthi’s lawyers. Sgt Rajkumar, whose trial took place after Mourthi’s death, was eventually convicted and sentenced to 15 months’ imprisonment, leaving doubts as to his credibility during the capital trial.
Why are statements that paraphrased, unsigned and undated allowed? Would things have been different if all these accused persons – from young Benjamin Lim to the late Vignes Mourthi – had almost immediate access to lawyers who could advise them of their rights and ensure that due process has been followed in every instance?
The point here is not to say that the police are guilty of misconduct in every case. In fact, except with the possible exception of what happened with Sgt Rajkumar, the police have acted according to their protocol in every case mentioned in this article. But if the existing protocol allows for such practices as paraphrased statements and unaccompanied minors, then the protocol needs to be changed.
It is in the interest of everyone in Singapore that police procedures adhere to high standards. We need good law enforcement to keep the city safe, but prioritising speed and efficiency in closing a case over rights-based approaches opens the entire system up to allegations of misconduct and miscarriages of justice. It is important that our law enforcement agencies operate – and are seen to operate – in ways that are beyond reproach, so as to protect public confidence in the institution.
It’s good that the police are beginning to make video recordings of interrogations. This would go some way in address issues with taking statements. But access to legal counsel is just as, if not even more, crucial. And these practices should not simply be included in police guidelines or protocol – they need to be clearly enshrined in law to make sure that these protections are rights accorded to every person, rather than mere recommendations.
Kirsten Han is a Singaporean blogger and journalist. She is also involved in the We Believe in Second Chances campaign for the abolishment of the death penalty. A social media junkie, she tweets at @kixes. The views expressed are her own.
