More needy accused persons to get legal aid with new govt-funded public defender's office

The latest shift in the stance towards criminal legal aid came after a study of the models in 11 other jurisdictions. ST PHOTO: LIM YAOHUI

SINGAPORE - A public defender's office, which is fully funded by the Government, is targeted to start providing legal aid by the year end to needy Singaporeans who are facing criminal charges but cannot afford to hire their own lawyers.

"We want to enhance access to justice for vulnerable individuals in Singapore," said Home Affairs and Law Minister K. Shanmugam in Parliament on Monday (April 4) as he announced the move in a ministerial statement.

The income ceiling to qualify for criminal legal aid will be raised, from $950 to $1,500 in monthly per capita household income, enabling resident households up to the 35th income percentile to benefit.

The scope of coverage will also be expanded to all types of offences, except regulatory ones such as traffic summonses and littering offences, as well as certain laws aimed at deterring gambling and betting, organised and syndicated crime, and terrorism.

These changes mean that more accused persons with limited means can qualify to have a public defender, who is a full-time lawyer, represent them in court.

The Law Ministry (MinLaw) said in a press statement on Monday that the Public Defender’s Bill will be tabled in Parliament to establish the office.

The latest shift in the Government's stance towards criminal legal aid came after a study of the different criminal legal aid models in 11 other jurisdictions, including Britain, the Australian states of New South Wales and Victoria, and Hong Kong.

Mr Shanmugam said: "We have considered the lessons from others, as well as the feedback from the Law Society and Criminal Bar."

He noted that expansions in coverage of criminal legal aid contributed to higher costs in other jurisdictions. For instance, in Hong Kong, $217 million was spent on both civil and criminal legal aid in 2016.

"We intend to put in place measures to try and ensure that aid is given only to deserving cases, and try and ensure that the costs of criminal legal aid remain sustainable," he said.

Another concern is to prevent abuse of the system, such as wealthy individuals finding ways to meet the eligibility criteria, he added.

Mr Shanmugam said systems can be implemented to detect such practices, but acknowledged that a "trickier" category of abuse, where applicants fulfil the means and merits tests, but are perceived to be morally undeserving of aid, was more challenging.

"As long as it falls within the categories of cases which would be covered by legal aid, then public outrage on a case-by-case basis cannot be the basis on which legal aid is given or not given. And we will need to think through and explain our position carefully to the public," he said.

The Government's approach to supporting criminal legal aid has evolved over the years.

Since 1985, criminal legal aid has been provided through the Criminal Legal Aid Scheme (Clas) initiated by the Law Society and senior lawyers including the late Senior Counsel Harry Elias.

The scheme, which is currently administered by the Law Society Pro Bono Services, was privately funded through the society and goodwill donations.

Back then, the Government's position was that it was incongruous to use public funds to defend an accused person.

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In 2015, the Government started co-funding Clas, paying 75 per cent of its operating costs, with the remaining 25 per cent funded through private donations and the Law Society.

This led to a fourfold increase to about 1,250 accused persons a year, comprising both Singaporeans and permanent residents, who received aid through Clas.

MinLaw then began considering further support for criminal legal aid.

On Monday, Mr Shanmugam said the public defender’s office will be established as a department under MinLaw, similar to the Legal Aid Bureau, which provides help for civil cases, and the Insolvency and Public Trustee’s Office.

The public defender's office will have full-time lawyers as employees, taking on cases as public defenders, he said. This can include fresh graduates and younger lawyers and mid-career hires who want to do such work.

This will be scaled up over time, and at a later date, cases will be outsourced to a panel of qualified lawyers.

The Government will continue to work with and provide some co-funding to Clas, said Mr Shanmugam.

The details of the funding will be assessed and discussed, he added.

"This will also help preserve the pro bono spirit of the legal fraternity, which has been a key pillar of legal aid," he said.

Details of how the cases will be split between the public defender's office and Clas will also be worked out later.

In the financial year 2020, Clas covered 712 cases, he noted.

He estimated that with the changes, the total caseload for criminal legal aid could increase by more than half.

A MinLaw spokesman said 712 refers to the number of cases directly co-funded by the ministry, out of 841 successful applications.

In his speech in Parliament, Mr Shanmugam also addressed concerns that the expansion of legal aid would affect the livelihood of lawyers.

He said that an analysis of past data showed that 60 per cent of the people who would benefit from the expanded coverage would likely have represented themselves and not hired private lawyers.

"Our assessment is that in the main, lawyers' income should not substantially be affected and their income will not in the main depend on people at the 35th percentile and below," he said.

Leader of the Opposition Pritam Singh asked how much funding the office is likely to require and the number of staff that will be hired.

Mr Shanmugam said discussions are going on with the Finance Minister and the details will be dealt with when the Bill is introduced.

In response to Mr Murali Pillai (Bukit Batok), who asked about the superintending body, Mr Shanmugam said the office will be separate from both the legal and judicial service commissions.

Ms Sylvia Lim (Aljunied GRC) sought clarification on whether the scheme covered appeals, and Mr Shanmugam replied that it would.

In a statement, a Law Society spokesman said it remains committed to the mission of access to justice for the vulnerable population.

“We look forward to engaging with the Ministry of Law on how to provide the best pro bono assistance in criminal cases, in the spirit of consultation that our Bar has long enjoyed with the ministry.”

Shanmugam cites abuse of legal aid elsewhere 

In an annex to his speech on the setting up of a public defender’s office in Singapore, Law and Home Affairs Minister K. Shanmugam gave examples of abuse of criminal legal aid in other countries.

In Britain, cases where legal aid was spent on lengthy trials have caused public unhappiness.

  • The trial of three men accused of the murder of policeman Andrew Harper cost taxpayers £465,000 in 2008. The trio were convicted of manslaughter.
  • Ben Butler and his partner Jennie Gray, who were convicted of murdering Butler’s six-year-old daughter, were granted nearly £1.5 million (S$2.7 million) in legal aid over 15 years.

There were also cases of rich defendants who received legal aid as their assets were frozen.

In 2012, one of them was London metals trading tycoon Virendra Rastogi, who owned a £6 million home and arrived in court every day in a chauffeur-driven car. He received £5 million in criminal legal aid. 

Mr Shanmugam first cited these cases in a 2020 statement, noting the public debate and outcry over abuse and escalating government costs of Britain’s criminal legal aid schemes.

Since 2012, the British government had to cut back on criminal legal aid funding, as costs had ballooned to more than half of its annual £2 billion legal aid bill.

In New Zealand, spending on legal aid rose from about NZ$111 million in 2006/7 to NZ$173 million by 2009/10 – an increase of nearly 56 per cent.

There was pushback against proposals to tighten the scheme, and the country’s legal aid expenditure has remained at about NZ$150 million (S$141 million).

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All MPs of the 14th Parliament, which opened on Aug 24, 2020, were able to conduct parliamentary proceedings while seated on the same floor.

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