Citation(2019) 31 SAcLJ 21042
Published date01 December 2019
Date01 December 2019
I. Introduction

1 The criminal justice process is the backbone of society that provides the context in which the substantive criminal law operates. The process includes all the activities “that operate to bring the substantive law of crime to bear (or to keep it from coming to bear)” on accused persons.1 In his seminal book2 and article,3 Herbert Packer espoused two renowned models that elucidate the framework for analysing the criminal justice process: the Crime Control Model and the Due Process Model. This article will analyse the unique Singapore criminal justice process to determine where it currently lies on the spectrum between the two models. In particular, this article will focus on some of the changes and developments that have been made and how they have affected the balance achieved in the Singapore criminal justice model. This article will then reflect on the shifts in balance and conclude on the trend and future of the Singapore criminal justice system.

II. The two models of criminal justice

2 The two models of criminal justice represent two distinct value systems with differing underlying philosophies. They were constructed to provide a convenient means of discussing the operation of the criminal justice process.4 These two models “compete for priority in the operation of the criminal process”.5 Every society's criminal justice process falls somewhere along a spectrum between the Crime Control and Due Process models.6 No society would ever become a pure version of either model. Indeed, as Packer points out, a person who fully subscribed to the extremes of either model, to the full exclusion of the other model, would be “viewed as a fanatic”.7

A. Crime Control Model

3 The value system underlying the Crime Control Model is that “the repression of criminal conduct is by far the most important function to be performed by the criminal process”.8 Public order is seen as an important condition of human freedom, with the criminal process being the “positive guarantor of social freedom”.9

4 In order to achieve these aims and purposes, the Crime Control Model requires that “primary attention” be paid towards the efficiency of the criminal process and therefore its capacity to process offenders.10 This is reflected in high apprehension and conviction rates. A premium is placed on speed and finality, with non-judicial informal processes

being preferred. This model thus resembles an “assembly-line conveyor belt down which moves an endless stream of cases”.11

5 The premise under this model that allows for pursuing efficiency is that there must be “confidence in the reliability of informal administrative fact-finding activities” such as those of the police and prosecution, thus allowing the judicial part of the process to be relatively “perfunctory”.12 This results in innocent accused persons being removed from the process at an early stage with the conviction of the rest proceeding expeditiously with minimum occasions of challenge.13 As a result of this, the Crime Control Model requires that little to no restrictions be placed upon the police and prosecutorial processes.14

6 Therefore, the Crime Control Model de-emphasises the importance of having an adversarial court process.15 The “focal device” of this model is the guilty plea which is used to reduce the judicial adjudicative processes to a minimum.16

B. Due Process Model

7 The value system that underlies the Due Process Model, on the other hand, involves the concepts of “primacy of the individual” and “limitation on official power”.17 This thus involves giving primacy to an individual's rights as opposed to the rights of the community as a whole.18

8 The Due Process Model insists on preventing and eliminating mistakes,19 with reliability playing a more dominant role than efficiency.20 The model therefore rejects the reliance on the accuracy and ability of administrative processes and emphasises the possibility of error.21 There is therefore an insistence on a formal judicial adjudicative process, publicly heard by an impartial tribunal, with the accused being given the opportunity to disprove the Prosecution's case.22 This means that the adversarial aspect becomes “central” to the entire process.23

9 This model thus resembles “an obstacle course” with each of its stages presenting “formidable impediments” to the accused being carried down the process.24

10 The most important mechanism employed by the Due Process Model is the doctrine of legal guilt. Under this doctrine, even if reliable evidence shows that the accused factually committed the act, if the factual determinations are made in a procedurally irregular fashion, the authorities acted outside their allocated competences, or the rules safeguarding the accused and the process are not complied with, the accused will not be held to be guilty.25 As a result, a factually guilty accused person is given the opportunity to be legally innocent through a procedural situation which allows for the usage of defences and doctrines that are not in any way related to factual guilt.26

III. The Singapore model of criminal justice

11 The Singapore criminal justice model was first analysed by former Attorney-General and former Chief Justice Chan Sek Keong SC in his seminal works.27 These works clearly espoused the philosophy of the Singapore criminal justice model with the underlying values remaining relevant even in modern Singapore.28

12 The goal of our criminal justice system is “a high rate of conviction of the factually guilty accused”, which would mean that numerous aspects of the Crime Control Model have to be adopted.29 As a result, our laws promote convicting factually guilty persons and efficiency in the system.30 However, there also remain rules and procedures to prevent and correct potential miscarriages of justice which all governments have some sensitivity towards.31 As such, the Singapore model incorporates features from both the Crime Control and Due Process models.32 However, the balance between the two models is in favour of the Crime Control Model and its values.33 Indeed, it has been said that today's underlying values of Singapore's criminal justice system “still approximate to the value system” of the Crime Control Model.34

13 Numerous other commentators have also reinforced the position by Chan Sek Keong SC and supported the position that Singapore continues to strongly subscribe to the Crime Control Model.35

14 In analysing the Singapore criminal justice model, it is important to also consider the contributors that guide and shape the system. Packer stated that the validating authority for the Due Process Model is the Judiciary in its exercise of limiting the powers of officials, while the validating authority for the Crime Control Model is ultimately the legislative and administrative agencies.36 However, this is not necessarily the case, as will be shown below,37 because the overall balance between the community and an individual's rights is strongly influenced by the ideological and social goals of the executive government.38 Furthermore, the opinions and views of the public and the society also come into play by influencing policies and laws through the exercise of freedom of expression and via proxy through the society's democratically elected government. Therefore, there emerges three main stakeholders and players that mould the criminal justice system: the society, the Executive in conjunction with the Legislature, and the Judiciary. These will be considered in turn to examine and determine where along the spectrum the current Singapore criminal justice model resides. From the shifts and trends, it will also become apparent where the future of the Singapore criminal justice model is headed towards.

A. Society

15 Public opinion was described by Packer as an “enigmatic force” whose stance cannot be determined.39 Nonetheless, the public plays an important role in shaping the criminal justice system because the system

ultimately serves society. In order for the criminal justice system to work and be respected, the people in our society must support it. Thus, it is crucial to determine what the values of our society are so that the context of the criminal justice model can be better understood. As the general public does not usually consider the kind of model they would support, proxies must be used to determine the values of our society from which a preference for a criminal justice model can be derived.
(1) Ideological preferences

16 One aspect of the Crime Control Model is the “utilitarian emphasis on the repression of crime” which is a “premium consideration”.40 This is likely to resonate well in Singapore because of the communitarian values that pervade our society. These values emphasise the importance of the community's interests over individualistic interests. Indeed, the Court of Appeal has observed that criminal law in Singapore is ultimately “the public's expression of communitarian values to be promoted, defended and preserved”.41 Thus, many Singaporeans would ideologically prefer a model that promotes the good of the community through crime control as opposed to an individual's rights taking precedence over other interests.

17 Packer posits that the philosophy underlying the Due Process Model does not resonate well with a majority of the general public.42 Indeed, he suggested that “a preponderant segment of the public has little sympathy with the tenets of the Due Process Model”.43

18 This position is especially true in a communitarian society such as Singapore. The idea that a factually guilty person could walk free because of a procedural irregularity is almost unfathomable to many members of the public. Given that Singapore's criminal justice system has traditionally favoured the Crime Control Model and its elements,44

there are no cases directly on point to illustrate this position. However, it is possible to support this...

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