MODERNISING THE CRIMINAL JUSTICE FRAMEWORK

• Date: 01 December 2011
• Published date: 01 December 2011
• Author: Melanie CHNG LLB (Hons) (National University of Singapore), LLM (Harvard); Advocate & Solicitor (Singapore); Assistant Director, Ministry of Law.

The Criminal Procedure Code 2010

The concept of “balancing” prevalent in criminal justice discourse is premised on a paradigm where “state” and “individual” interests are perpetually in conflict. This article outlines the key components of the new Criminal Procedure Code 2010 and discusses another dimension of the stateindividual relationship. Rather than being inherently incompatible, synergistic common goals can, on occasion, be pursued between the State and an accused. The article will also consider areas in the Criminal Procedure Code 2010 where conflicts between “state” and “individual” interests have in fact arisen, and will outline the pragmatic approach that has been adopted towards their resolution.

The criminal process is at the heart of the criminal justice system. It is not only a subject of great practical importance; it is also a reflection of our ideals and values as to the way in which we can accord justice to both the guilty and to the innocent.[1]

I. Introduction

1 The recent legislative amendments to Singapore‘s Criminal Procedure Code (“CPC”) signify a new chapter in the continuing evolution of Singapore‘s criminal justice process. The new Criminal Procedure Code 2010 (“New CPC”),2 which came into force on

2 January 2011, is a further milestone in the journey where “society seeks to strike a balance between: the rights of society, to secure conviction of a person who commits an offence; and the rights of an individual, not to be wrongly convicted”.3 This article will examine the changing frontiers of this balance by discussing a number of the New CPC‘s amendments. Through this vantage point, this piece will also highlight the need to supplement this “balancing” analytic to reflect other facets of the state-individual relationship. Explicit articulation of these added dimensions will help develop a more comprehensive analytic for the rationalisation and evaluation of value choices within the criminal process.

2 This article considers the above issues in four parts.

(a) The first section explores the theoretical construct of “balancing”, and explains how the concepts of “state” and “individual” are not inherently opposed absolutes. Assessments of the criminal process through the singular analytic of “balancing” between state and individual interests should therefore be avoided.

(b) The second section provides an introduction to the New CPC4 by outlining its substantive amendments and the consultative processes leading to its enactment.

(c) The third section highlights how the policy options within the criminal process extend beyond a binary preference between “state” or “individual” interests. The New CPC‘s regimes of (i) pre-trial discovery and (ii) community-based sentencing (“CBS”) illustrate how certain facets of state and individual interests can be synergistically aligned towards the attainment of common objects. Rather than always having to “balance” between state and individual interests, “shared spaces” can also exist.

(d) The fourth and final section examines the New CPC‘s approach to mediating conflicts between state and individual interests where such conflicts do in fact arise. The New CPC‘s rigorously pragmatic approach5 to balancing these competing interests will be illustrated by looking at the New CPC‘s amendments on: (i) victim compensation, (ii) video

conferencing for First Mentions, and (iii) admissibility of voir dire evidence.

II. The dialectics of criminal justice reform - Of commonalities and divergence

[I]t is a fine balance between the public interest in ensuring that criminal acts are punished and fairness to the accused person.[6]

3 The “ubiquitous notion”7 of balancing between (i) the State‘s public order concerns and (ii) individual liberty and autonomy is a familiar refrain in criminal justice literature.8 This section will consider the following questions ancillary to this concept of “balancing”:

(a) The relationship between “state” and “individual” interests - What do the respective concepts of “state” and “individual” interests comprise? Are these concepts monolithic, or made up of diverse ancillary values? Are the interests of “state” and “individual” mutually exclusive?

(b) The methodology and outcomes of “balancing” - Are the tensions requiring “balancing” within the criminal process always between “state” and “individual” interests inter se? How should competing interests be reconciled to arrive at a “just” outcome?

4 The subsequent parts of the article will then apply the tentative conclusions on each of these issues to the framework of the New CPC.9

A. The relationship between “state” and “individual” interests

5 In a speech delivered in 1995 whilst he was the Attorney- General, the current Honourable Chief Justice remarked that:10

[T]he administration of justice involves a tension between 2 fundamental needs: on the one hand, the need to ensure the security and well-being of the community and, on the other hand, the need to give expression to the interests of the individual. At times, it is true, the

2 needs meet; but it would be impractical to assume that this is invariably the case. [emphasis added]

6 In this regard, the dominant metaphorical concept of “balancing” state against individual depicts the implicit imagery of a Justician opposition between the “scales” of state interest on the one hand, and of individual autonomy on the other. As a result, the language of “conflict” and “compromise” has become the central schemata for navigating the relationship between the two.11 This pride of place accorded to the perception of incompatibility between state and individual interests obscures the equally real possibility that “[a]t times … the 2 needs [may] meet”.12 The learned Chief Justice‘s caution against assuming invariable alignment between these areas consequently appears to have been overshadowed by a converse (but equally reductionist) assumption that the interests of state and individual are inherently opposed.

7 One acclaimed example of this dialectical rubric is Herbert Packer‘s seminal attempt to abstract, using an opposing pair of normative models, the “two separate value systems that compete for attention in the operation of the criminal process”.13 Packer‘s first model, the Crime Control Model, accords “primary attention” to the system‘s ability to apprehend and convict offenders.14 To discharge this function, the Crime Control Model places a “premium on speed and finality”,15 values which it seeks to achieve through heavy reliance on administrative fact-finding processes.16 In contrast, Packer‘s second model, the Due Process Model, is essentially a “negative” model17 based on “antiauthoritarian” values”18 that “assert limits on the nature of official

power and on the modes of its exercise”.19 Unlike the Crime Control Model, which may be likened to an “assembly line”, the Due Process Model resembles “an obstacle course”.20

8 Apart from being reflective of differing empirical assessments of factual reliability,21 Packer also attributes the differences between these two models to a normative divergence in ideology. The Crime Control Model embodies a value system that regards the repression of criminal conduct as “by far the most important function” of the criminal process”.22 In contrast, the Due Process Model‘s central preoccupation is with affording adequate protection to “the primacy of the individual”.23 Through the juxtaposition of these competing models, Packer professes to have encapsulated “the normative antimony at the heart of the criminal law”.24

9 Like the “virtually universal”25 conventional wisdom, Packer‘s narrative of the criminal process consequently adopts a typology comprised of two stages: (a) a “severe struggle” between the “conflicting values systems” of the State and the individual,26 and (b) the eventual resolution of these competing tensions using balancing methodology.27 Much of the local discourse on this area has focused on where Singapore‘s criminal justice system should situate itself between the polarities of the Crime Control and Due Process Models.28 This part of the article is instead targeted at a more fundamental issue - the comprehensiveness of this dichotomous framework.

10 In this regard, notwithstanding the perceived polarity between the Crime Control and Due Process Models,29 Packer‘s analytic structure is in fact bounded by a “unifying conception”30 of “unyielding disharmony”31 between state and individual. As John Griffiths has insightfully commented, what Packer provides is “a single Battle Model with two possibilities of bias”.32 This dichotomous frame of reference, which presumptively necessitates a “trade-off ” between state and individual interests, presents a static vision of what are, in reality, dynamic sites of conflict. By generating a singular preoccupation with the “balance of advantage” between state and individual,33 Packer‘s paradigm results in a “unidimensional conception of the total range of procedural choice”34 which overlooks other facets of the state-individual relationship.

11 Rather than being “mutually exclusive”35 opposites (as Packer suggests), the relationship between state and individual interests is more fluid and complex.36 To begin with, the State‘s public order goals are important pillars of and necessary conditions to the enjoyment of individual liberties. Restrictions on individual rights may paradoxically be needed to preserve the system‘s capacity to protect these very rights.37 Conversely, the system‘s effectiveness in maintaining public order is dependent, in part, on public perception of the integrity of its outcomes.38 Protection of individual (due process) values like dignity

and fairness can consequenly have a legitimating effect on the criminal sanction‘s moral force.39

12 This interconnectedness of state and individual interests highlights the fallacy behind the perceived inevitability of...