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Vulnerable suspects and their access to counsel

On Monday, Jan 25, Benjamin Lim, a 14-year-old Secondary 3 schoolboy, allegedly followed a girl into a lift and molested her. On Jan 26, plainclothes policemen visited his school and spoke to him in the principal's office. He was then taken by these policemen to Ang Mo Kio Police Division and interviewed by an investigating officer at a workstation in an open office.

While his mother had been very briefly informed of some basic facts over the phone, no parent, guardian or lawyer was present with him at the interview. We do not at this point know what was said or explained to him, or whether he received a Pamphlet Of Rights. According to the police, he was released on bail into his mother's custody at around 2.50pm after an interview of about two hours, and had not "exhibited any signs of being unduly distressed". Benjamin and his mother returned home to their 14th-floor family flat in Yishun, and he went into his room. He was found dead that same day at 4.20pm, at the foot of their block of flats.

Why did he jump? Could his death have been prevented? We can never know for certain, but that shouldn't stop us from pursuing a deeper inquiry into what happened to Benjamin that day.

The obvious issue is why weren't the parents allowed to be present during the interview? The simple answer is that there is no legal requirement for parents to be present in the interview room when a minor is involved.

Mr Lionel de Souza, ambassador for the National Crime Prevention Council, justified the rationale for this: "A police investigation is about searching for the truth. Having a parent in the same room with the accused would hamper this search, because they will not be neutral parties."


ST ILLUSTRATION: MIEL

I beg to differ. That cannot be correct. This is precisely the same attitude of mind that proscribes a regime allowing immediate access to counsel.

In his comments to the media about this case, Mr Amolat Singh, a veteran criminal lawyer, said: "Children are very vulnerable. If teachers and principals can terrify a child, how do you think they would react to a police officer?" He has a point.

A stressful interrogation can extract what the interrogator is looking for, which may, or may not, be the truth. There are plenty of empirical psychological studies that strongly suggest that people of sound mind and temperament can be made to confess to something that they didn't do. The police could have considered a less intimidating way of approaching the investigation. Even if an offence is arrestable, arrest is not mandated and the police need only do so if appropriate - so was it appropriate to arrest this 14-year-old boy at school during school hours?

Instead of detaining or arresting Benjamin at school, the police have the power under the Criminal Procedure Code to require a person to attend and be examined, and it is not uncommon practice for the police to contact a suspect/witness by phone and ask him to attend an interview. To be fair, the police have said they "will review and address the issue".

A stressful interrogation can extract what the interrogator is looking for, which may, or may not, be the truth. There are plenty of empirical psychological studies that strongly suggest that people of sound mind and temperament can be made to confess to something that they didn't do. The police could have considered a less intimidating way of approaching the investigation.

But are they just going to look at this particular issue, or will this be a catalyst for broader reform? Also, how transparent will this review be?

In considering our options, let me ask a question that has been posed to me as a thought experiment: If Benjamin had had a lawyer present to give advice during the course of the interview, would things have turned out differently? As I said earlier, we will never have certainty, but it is not impossible to imagine a different outcome, and if that is possible, then one more question: How then should we act?

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. I have referred to it as a "positive externality". This is a position that a large majority of the Bar take.

While we accept the need for effective investigations, and that it is a balance between police effectiveness and protection for an accused, this incident forces us to contemplate the potentially catastrophic cost of getting the balance wrong. We at the Bar have always been prepared to compromise, take realistic incremental steps forward and accommodate the concerns of the authorities.

We have proposed a one-hour private meeting between accused/suspect and lawyer before any statements are taken. But this has never detracted from our aspiration of seeing our criminal justice regime develop a fair but rational early access to counsel doctrine.

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. Perhaps the time is right to fast forward this discussion and reboot our thinking.

A short recap. Article 9(3) of the Constitution gives an arrested person the right to be defended by counsel. However, the Courts have held that this is not a right of immediate access, but a right to consult counsel within a "reasonable" time as the police need time and space to conduct investigations effectively. That is the crux of the problem. The idea of "reasonableness" is elastic. What balance do we strike? Is it fair to the arrested person or suspect if they can talk to a lawyer only days (or a couple of weeks) after the investigation?

Intimidation, coercion or psychological manipulation can come in many forms, is often subtle, and may even be unintentional. In the context of an investigation by the police, which is inherently stressful, surely every suspect is vulnerable? The precise level of vulnerability is just a matter of degree. This must ultimately devalue the reliability of the statements (let alone confessions) given under those circumstances.

The trial should not start, and for all intents and purposes end, at the police station.

What happens in other jurisdictions around us? A selective survey follows:

  • In Malaysia, the police must inform the suspect of his right to counsel before any questioning commences or before any statement is recorded. The police officer must allow the suspect to consult a lawyer or attempt to consult a lawyer "as soon as may be". To this end, I understand that our counterparts at the Malaysian Bar Council have a team of "on-call" rostered lawyers prepared to provide immediate access at short notice pro bono. The questioning or recording of statements may only take place "a reasonable time" after communications have been made or attempted.
  • In Hong Kong, a suspect's right to counsel is not absolute. However, that suspect must be given an opportunity to seek legal representation. A senior police officer may delay access to counsel when he has (subjective) reasonable grounds to believe that such access may interfere with the investigation of that offence. This is a limited right of delay as the suspect must be charged or brought before a magistrate 48 hours after apprehension, both of which trigger a right to counsel.
  • In India, the Supreme Court case of D. K .Vasu v State of West Bengal set out guidelines that the police have to follow when detaining or arresting suspects. The suspect is entitled to meet, communicate and consult with his lawyer during interrogation, although not throughout the interrogation.
  • In Taiwan, the Code of Criminal Procedure stipulates that the maximum period of detention is 24 hours. Suspects must be told during an "examination" or interview that they are entitled to retain a defence attorney. The police must wait four hours for a defence attorney to show up, and should not interrogate the suspect during this period: Article 93-1. Failure to comply with this provision has led to confessions made during this period in the absence of an attorney being excluded from evidence.

While there are obviously many approaches to finding a balance between investigative efficacy and dealing fairly with accused persons, it is clear that, at least on paper, Singapore is an outlier in the way we emphasise efficacy over protection. These are of course the formal rules and procedures, and the levels of compliance on the ground may differ, and may be more honoured in the breach than in the observance.

Notwithstanding the degree of effectiveness in the jurisdictions mentioned, they are rights which can be enforced, and rights that hold the investigators to a set of standards where failing to comply has actual legal consequences.

I dare say that in this area, we have yet to find our equilibrium.

Unsurprisingly, as a lawyer, my approach is driven from the perspective of allowing early access to counsel. This is the "gold standard", and the simpler and most effective solution.

The experience of other legal jurisdictions which allow the early or immediate availability of legal advice contains lessons for us.

Early access to counsel in Singapore will address many of the concerns faced when dealing with young or vulnerable suspects, and they certainly address the larger picture of developing a process where we can safely rely on the fairness of the convictions, and acquittals, that the criminal justice system metes out.

We eliminate or minimise disputes over the statement-taking process, the admissibility of confessions, the pressuring of witnesses, the likelihood that star witnesses or accused persons resile from their statements.

Obviously, with young suspects, immediate access to counsel may not be the only viable solution, though it may be the best one from the Bar's point of view. There are other intermediate protections, such as allowing parents or guardians to be present, or adapting the present Appropriate Adults Scheme.

Very often, there are good ideas, and a willingness on the part of the senior leadership to accept these ideas in principle. But good ideas don't always get implemented effectively. There can be a lag between the acceptance of an initiative and the reality of application on the ground.

Recently, I was discouraged to learn that checks were made in various police precincts about whether suspects were getting access to the Pamphlet Of Rights.

It turned out that some investigating officers had never heard of it; these pamphlets were unavailable in a number of land divisions, and not available in the lockups where they were most needed.

We have raised these issues, and I am sure they will be fixed over time, but my overarching point is that the inertia of "this-is-how-we- always-do-things" is difficult to overcome, and the imperative to accelerate discussions on how to deliver timely legal advice to suspects (whether via access to counsel, a guardian or a pamphlet) must intensify.

If Benjamin's death was avoidable with a better system in place, then it is one death too many. But it is not just about Benjamin.

Does the investigative process unintentionally cause avoidable psychological trauma and long-term distress? Does it lead to over-punishment due to confessions which are un-ameliorated or un-mitigated due to lack of knowledge or advice from counsel?

That confessions can be challenged in voir dire is not a sufficient answer (and it would be interesting to find out how many voir dire challenges actually succeed, and how much judicial time they take). Voir dire refers to a mini-hearing held during a trial on the admissibility of contested evidence.

The law should only go as far as punishing the guilty for that specific crime, no more, no less, regardless of age, gender or other factors. This Law Gazette message is very much a personal view, and as much from the heart as it is from the head; but it ought not to be any less legitimate, or less rational just because it is not based solely on cold, unemotional logic.

The criminal justice system should win over hearts and minds, it should not elicit a resigned response that the odds are irretrievably stacked against the accused. The role of the Bar, as stakeholders in the criminal justice system, is to give our clients, and victims, a sense of confidence, to tell them that they can trust the system, it is not perfect, but it is largely fair and transparent, and is ultimately aimed at generating just outcomes.

Can we at the Bar genuinely say that yet? We can do better. We must do better. And we should do it together.

  • Thio Shen Yi, a senior counsel, is president of The Law Society of Singapore. This article was first published in the February issue of the Singapore Law Gazette.
A version of this article appeared in the print edition of The Straits Times on February 20, 2016, with the headline 'Vulnerable suspects and their access to counsel'. Print Edition | Subscribe