THE PRIVILEGE AGAINST SELF-INCRIMINATION AND RIGHT OF ACCESS TO A LAWYER

• Date: 01 December 2013
• Author: HO Hock Lai LLB (NUS), BCL (Oxford), PhD (Cambridge); Professor, Faculty of Law, National University of Singapore.
• Citation: (2013) 25 SAcLJ 826
• Published date: 01 December 2013

A Comparative Assessment

This essay assesses the state of the law in Singapore on aspects of the right of silence and the right of access to a lawyer of a suspect who is in custody. It examines the right to be informed of the privilege against self-incrimination, the basis for and fairness of drawing adverse inferences from the non-disclosure of material facts during questioning, the right to be informed of the right to a lawyer and the time at which this right is available to be exercised. Comparisons are made with the law elsewhere, especially in the US, the UK and Europe. The general conclusion is that these rights are relatively weak in Singapore.

I. Introduction

1 In many countries, the suspect who is detained and questioned by law enforcement officers has a number of fundamental rights. They include the right against self-incrimination and the right to a lawyer. These rights will be examined in the specific context where a person is in custody.1 In this context, they serve the important function of protecting the fairness and reliability of the process by which his statement is taken. In line with the theme of this issue, especial attention will be paid to the constitutional and human rights dimensions. As compared to the law elsewhere, particularly in the US, the UK and Europe, the two rights are relatively weak in Singapore.

II. The privilege against self-incrimination and adverse inference from silence

2 The right of silence has many aspects.2 Only some of them will be considered. One aspect is the right of a person who is being questioned by the police not to answer incriminating questions. This is

also, and more commonly, referred to as the “privilege against self-incrimination”. We will assess the state of this privilege, and of the right of the suspect to be informed of it, in Singapore. The local position will be assessed against international standards. Another aspect of the right of silence deals with the permissibility of drawing an adverse inference at the trial from the accused's failure to disclose facts relevant to his defence during questioning by law enforcement officers. The fairness of and legal basis for drawing such adverse inferences will be considered.

A. Law and developments elsewhere

3 In the US, the privilege against self-incrimination is a constitutional right under the Fifth Amendment to the US Constitution.3 In the landmark case of Miranda v Arizona4 (“Miranda”), the US Supreme Court held that the police must inform a person before the commencement of custodial interrogation of his right to remain silent (and also to have a lawyer with him during the interrogation, a topic to which we will return).5 If the person indicates that he wishes to remain silent, the questioning must cease. Any statement that has been obtained in violation of this rule cannot be adduced at the trial as evidence of his guilt.6

4 The US position is not exceptional. It is well established that the privilege against self-incrimination is an implicit component of the right to a fair trial in Art 6 of the European Convention on Human Rights.7 The privilege is also recognised in other human rights documents such as the International Covenant on Civil and Political Rights.8 In England and Wales, as in many other countries, the police have a legal duty to inform the accused of his privilege against self-incrimination. Under the Police and Criminal Evidence Act 1984,9 a person whom there are grounds to suspect of an offence must be

cautioned before the police may question him.10 He must be told that he does not have to say anything and anything he does say may be given in evidence.11 The failure to administer this caution is a “significant and substantial” breach. Statements taken without a caution may be excluded under s 78 of the Police and Criminal Evidence Act 1984 where their admission “would have … an adverse effect on the fairness of the proceedings”.12

5 There is increasing international emphasis on the right to be informed of the right of silence. On 22 May 2012, the European Parliament and the Council adopted a Directive on the Right to Information in Criminal Proceedings.13 Under this directive, member states must ensure that suspects or accused persons are informed promptly (in a written “Letter of Rights”) of a number of procedural rights, including the right to remain silent. On 20 December 2012, the United Nations General Assembly passed a resolution on United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems.14 The principles and guidelines were purportedly drawn from “international standards and recognized good practices”.15 Under Guideline 3, states are called upon to introduce measures to “promptly inform every person detained, arrested, suspected or accused of, or charged with a criminal offence of his or her right to remain silent”.16 The person should be advised of his or her “rights and the implications of waiving them in a clear and plain manner”.17

B. The position in Singapore

6 Police officers in Singapore have the power under s 22(1) of the Criminal Procedure Code18 to compel anyone “who appears to be acquainted with any of the facts and circumstances of [a case under investigation] to appear before” them. This includes a person who is suspected of having committed the offence. The police are further empowered to question and take statements from the person. Section 22(2) provides that the person “shall be bound to state truly what he knows of the facts and circumstances of the case”. But this is qualified immediately by the proviso: “except that he need not say anything that might expose him to a criminal charge, penalty or forfeiture”.19 While a suspect who is being questioned has a right to exercise the privilege against self-incrimination that is contained in this proviso, this right is weak in two respects. First, he risks incurring an evidential disadvantage at the trial if he exercises this right. Secondly, the police do not have to inform him that he has this right. Each will be elaborated in turn.

(1) Adverse inference

7 It is now accepted that the trial judge may draw an adverse inference against the accused from his failure to mention a fact in his defence when questioned under s 22 of the Criminal Procedure Code.20 In Kwek Seow Hock v Public Prosecutor21 (“Kwek Seow Hock”), a drug trafficking case, the Court of Appeal agreed with the trial judge that an adverse inference may be drawn from the accused's failure to mention in his s 22 statements that he had intended to keep half of the quantity of diamorphine in his possession for personal consumption.22 (At the time of this decision and before 2010, s 22 was numbered as s 121. For

convenience, all references to the provisions of the Criminal Procedure Code will be to the provisions as they have come to be renumbered since 2010.) The Court of Appeal held:23

[Under s 22 of the Criminal Procedure Code, t]he person under investigation is … entitled to remain silent in so far as self-incrimination is concerned. In our view, because an accused has such a right against self-incrimination when he makes a … statement under [s 22], no adverse inference, in general, may be drawn against him for failing to state any fact or circumstance which may incriminate him in any way.

If, however, the fact or circumstance that is withheld will exculpate the accused from an offence, a court may justifiably infer that it is an afterthought and untrue, unless the court is persuaded that there are good reasons for the omission to mention that exculpatory fact or circumstance. This accords with common sense — if an accused believes he is not guilty of an offence that he might be charged with, he would be expected to disclose why he has such a belief.

8 It should be noted that to attract the privilege in s 22(2), it suffices that disclosure of the fact “might expose [the accused] to a criminal charge”. A fact might be exculpatory in relation to offence A (drug trafficking) and inculpatory in relation to offence B (possession and consumption of a controlled drug). In Kwek Seow Hock, the accused's revelation of the fact about keeping the diamorphine for personal consumption would seem sufficiently incriminatory to attract the privilege in s 22(2).24

9 There are a number of difficulties with drawing an adverse inference from non-disclosure in the context of questioning under s 22. First, there is no clear statutory basis for it. The power to draw an adverse inference is conferred by s 261(1) of the Criminal Procedure Code and is expressly confined to the situation where the accused fails to mention a matter relevant to his defence “on being charged with an offence, or informed by a police officer … that he may be prosecuted for an offence”. The provision under which he may be so charged or officially informed is s 23 of the Criminal Procedure Code. If the police decide to act under this section, they must set out the charge in writing,

read it to the accused, and warn him that the court may be less likely to believe him if he withholds any information in his defence and reveals it only at the trial. The accused is then and only then invited to make a statement.

10 While s 261(1) of the Criminal Procedure Code permits an adverse inference to be drawn against the accused from his non—disclosure of material facts when invited to give a statement under s 23, it is unclear that it permits an adverse inference to be drawn from his non-disclosure during questioning under s 22. Section 22 empowers the police to take statements in the course of their investigation. It undoubtedly applies when they have yet to come to any decision on the charge — on whether to bring one, against whom and for what offence. The heading of this section is: “Power to Examine Witnesses”. Arguably, once the police charge a person with an offence, he can no longer be fittingly described as a “witness” or someone who...