Dangerous offenders can be jailed indefinitely, police get greater powers to search without warrant
The police can also compel suspects to provide DNA samples for investigation, under a slate of changes to the Criminal Procedure Code.
File photo of Changi Prison. (File photo: TODAY)
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SINGAPORE: An enhanced sentencing regime that could detain high-risk offenders who have committed serious crimes for life could apply to fewer than 30 cases a year, Senior Parliamentary Secretary for Law Rahayu Mahzam said on Monday (Feb 5).
The new regime is part of a slate of legislative changes that passed unanimously in the House, although parliamentarians raised concerns about the latitude the regime gives to the Home Affairs Minister to decide on the length of the sentence.
With the passage of the Criminal Procedure (Miscellaneous Amendments) Bill, police officers will also have more powers to conduct searches without a warrant, as well as compel suspects to undergo a forensic medical examination when it is relevant to the investigation.
Fifteen Members of Parliament (MPs) rose to speak during the debate on the Bill. Some also sought clarity on how law enforcement officers will exercise these expanded powers.
WHY IT MATTERS
The changes to the Criminal Procedure Code – Singapore’s key legislation that governs its justice process – are substantial.
The Sentence for Enhanced Public Protection (SEPP) will apply to “extremely dangerous offenders” who have committed serious violent or sexual crimes. These include culpable homicide, attempted murder, rape and sexual penetration of a minor.
The offenders must be at least 21 at the time of the offence, and pose a substantial risk of causing serious physical or sexual harm to others. A court will decide whether to impose the SEPP on an offender and specify a minimum sentence of between five to 20 years, which could go up to life.
After the offender has completed the minimum jail term, the Minister for Home Affairs assesses whether they are suitable to be released “on licence” – with conditions like e-tagging and counselling. The minister will be advised by a review board made up of relevant experts like retired judges, lawyers, psychiatrists and psychologists.
The conditions of release will be subject to a review at least every two years. If assessed suitable, the offender can be unconditionally discharged, bringing their sentence to an end.
A new type of sentence that the courts can impose to ensure that offenders who continue to pose a real danger to others are not released - this Sentence for Enhanced Public Protection (SEPP) was put up for debate in Parliament on Monday (Feb 5) by Law Minister K Shanmugam. He said Singapore “really ought to deal better” with cases of serious violent or sexual offences, where perpetrators re-offend - sometimes very shortly after they are released from prison. He cited and handed out examples of such cases from Singapore and abroad, noting that they represented patterns of serious abuse. Under the proposal, the court will specify a minimum term of imprisonment which will be subject to review at the end. If the offender is assessed to still pose a risk to others, he can continue to be kept in custody. If he is released, conditions can be imposed such as mandatory counselling, electronic monitoring or curfews. Mr Shanmugam said the SEPP will hopefully promote rehabilitation as offenders will have a very strong incentive to take rehabilitation seriously in the first period of sentencing. He said the SEPP will also allow for a more calibrated approach to sentencing. It could even result in judges imposing shorter sentences upfront as they will be assured that those are only a minimum. Offences subject to the SEPP will be set out in a new schedule and include culpable homicide, attempted murder, rape and sexual penetration of minors. Mr Shanmugam also highlighted proposed changes involving Forensic Medical Examinations (FMEs), which he said have become very important for getting evidence in offences like rape and sexual assault. Police will be able to compel suspects to undergo FMEs even if they do not consent, with “reasonable force” allowed if the FME does not involve intimate body parts or invasive procedures. It will be an offence for an accused person to refuse an FME unless they have a reasonable excuse. The court can also “draw adverse inferences” from refusal, said Mr Shanmugam. Where victims are concerned, consent is generally required, but FMEs may still be conducted if delays will result in loss of evidence and the victim is unable to give consent within a reasonable time due to a physical or mental condition. The minister said evidence collected through FMEs can make the difference between catching a culprit and him going free to commit more offences. He noted that there will be safeguards for both suspects and victims to ensure that FMEs are conducted safely and sensitively.
Other changes cover law enforcement powers related to the collection of evidence.
Police officers will be able to conduct searches without a warrant when they have reason to believe a suspect of an arrestable offence possesses or has power over evidence.
They are already able to conduct searches without a warrant if they believe a person will not, or is unlikely to, produce the evidence when ordered to.
Another change to the code makes it a crime for an accused person to refuse a forensic medical exam without a reasonable excuse.
“Reasonable force” may be used for exams that do not involve intimate parts or invasive procedures, such as swabbing the mouth or taking hair samples.
There will be a different approach for victims. Informed consent for a forensic medical exam will generally be required from them or their authorised decision-maker depending on the victim’s age.
Some exceptions apply, such as if a victim is comatose. An exception will be made only if a delay would lead to evidence being lost, degraded or contaminated.
If the victim’s condition is temporary, the police will “try as far as possible” to wait for them to recover and seek their consent for the exam, the Law and Home Affairs Ministries have said.
INDEFINITE DETENTION
MPs acknowledged that the new sentencing regime is limited to the most serious offences and recalcitrant offenders. But they raised concerns about how it would balance individual rights against the need to protect the public.
At the start of the debate, Minister for Law and Home Affairs K Shanmugam told parliament the new sentencing regime aims not just to enhance public protection but also strengthen the incentive for inmates to take their own rehabilitation seriously.
He said it could also result in judges imposing shorter sentences upfront, with the understanding that the sentence they impose under the SEPP is only the minimum.
During the debate, MPs raised several issues:
- An SEPP offender could be detained for up to life, and their release date will be indeterminate
- It is not the judiciary but the Home Affairs Minister, who is part of the executive branch, who decides whether an SEPP offender should be detained beyond their minimum term
- How will offenders be assessed for an SEPP?
- What kind of rehabilitation programmes will be available to SEPP offenders?
Nominated MP Usha Chandradas referenced a 2021 report from the UK on sentences of imprisonment for public protection – a form of indeterminate imprisonment that was put in place in 2005 and abolished in 2012.
The report found that affected inmates “consistently described mental and emotional deterioration” caused by the sentence, with the rate of self-harm about double that of those serving a life sentence.
In light of this, Ms Usha questioned what kind of rehabilitative support and mental health treatment will be available to SEPP offenders and their family members.
Responding to concerns that it is the executive and not the judiciary who decides on further detention, Ms Rahayu said the decision being made after the minimum sentence imposed by the court is different.
“The continued detention of the offender past that point, once the term has expired, is no longer to punish the offender, but to protect the public,” she said.
“It involves a complex assessment of multiple factors, including the risk that the offender might reoffend, his conduct in prison, and his rehabilitative progress and prospects. The logical and principled approach is for this to be an executive decision.”
She said that the decision could be subject to judicial review in certain situations.
The Home Affairs Minister is already the decision-maker for early release in the cases of corrective training, preventive detention and life imprisonment, Ms Rahayu added.
There are three “positive aspects” of the Criminal Procedure (Miscellaneous Amendments) Bill - improvements on the release of persons before trial on personal bond, prosecution's duty to disclose materials and compensation for crime victims, said MP Sylvia Lim. Speaking in Parliament on Monday (Feb 5), she also raised concerns about the role of auxiliary police officers in Forensic Medical Examinations and the Sentence for Enhanced Public Protection (SEPP) regime. Overall, the Workers’ Party is in support of the Bill, she said. On the improvements proposed under the Bill, Ms Lim said she is “very pleased” to see the change to enable more accused persons to be released while waiting for trial. This is especially meaningful for suspects who are poor. The amendment goes towards levelling the playing field between the rich and the poor in the criminal justice process, she said. On codification of prosecution to disclose unused materials, Ms Lim pointed out that it will be easier for law enforcement, the prosecution and defence, as well as the public to access them and understand what is expected. On compensation to crime victims, Ms Lim noted that this will increase the chances of compensation being awarded in a criminal case. She said the provision for bereavement and funeral expenses is a “positive” move to ease the pain of the victims. Turning to the SEPP, she said it is a “severe sentence” that should be invoked only in the most extreme of circumstances. She warned of the risk of “false positives” although risk assessment tools have become more sophisticated. She urged the Government and the courts to be circumspect when assessing the clinical assessment reports, adding that she will give “cautious support” to it.
MP Sylvia Lim (WP-Aljunied) also expressed concerns that the SEPP can be applied to first-time offenders and to one-off-cases, where it may not be appropriate.
To this, Ms Rahayu said the court must call for an independent risk assessment report, usually by IMH psychiatrists, and deem the offender to pose a substantial threat of serious harm before imposing the SEPP on a first-time offender.
Offenders on SEPP may not be segregated from other inmates in prison, and will have access to rehabilitative programmes available to all inmates as well as targeted psychology-based interventions.
SEARCH WITHOUT WARRANT
Ms Rahayu said conducting searches without a warrant does not amount to a “stop-and-frisk” policy where people could be subject to body searches on the streets.
MPs noted this as well as the safeguards in place against misuse of the expanded law enforcement powers, but still had concerns.
Ms Nadia Ahmad Samdin (PAP-Ang Mo Kio) asked what protections citizens have if they believe they have been unfairly searched, and how an officer will determine these standards. She noted that misuse of these powers, even by accident, could affect the trust between the police and citizens.
Empowering the police to conduct searches without a warrant is a substantial change and it is important to understand why this is considered necessary now, what cost-benefit analysis was done in view of the potential impact on trust between the public and police force, what protections will be afforded to those who feel they are being searched unfairly and what measures will be in place to prevent unfair accusations against police officers who are discharging their duties. MP Nadia Ahmad Samdin made these points in Parliament on Monday (Feb 5). She said searches without warrants have had unintended negative consequences in some other jurisdictions, with a significant impact on vulnerable and minority communities. Ms Nadia also spoke about enhancing powers to conduct Forensic Medical Examinations (FMEs), noting the critical role FMEs can play in obtaining evidence. However, she asked how the legislation can protect against possible unjust penalties for refusing an FME. She also pointed to potential issues with consent, such as where a minor who is a victim of a sexual crime has a different preference for the taking of samples and evidence compared to their parents.
Ms Rahayu reiterated that there are prerequisites for searches without a warrant. If the owner of the property is not a suspect and is uncontactable, police still need to apply for a court order to carry out a search.
The provision to search without a warrant also applies to investigations of arrestable offences where the police believe a suspect possesses or has power over evidence.
If the offence in question is non-arrestable, police officers still need to obtain an order from the public prosecutor or a magistrate before conducting searches without a warrant.
USE OF FORCE FOR FORENSIC MEDICAL EXAMS
MPs raised several issues on forensic medical exams:
- What constitutes “reasonable force” for non-invasive procedures against accused persons?
- What are the measures to safeguard children and vulnerable persons undergoing a forensic medical exam?
- Will police officers receive training on how to sensitively conduct forensic medical exams?
- What are the circumstances in which police will determine a victim is unable to provide consent within a reasonable time, and to go ahead with the medical exam without consent?
In response, Ms Rahayu said the police have established protocols on the use of force, and what constitutes “reasonable force” against an accused person will depend on the circumstances.
For example, police could pull on the cheek to swab the inside of a suspect’s mouth. This applies especially for evidence that rapidly degrades when exposed to the environment.
Ms Rahayu also noted that minors and vulnerable persons may be allowed to have a “trusted person” for support, if it does not jeopardise the investigation.
Police will assess the victim’s ability to consent and consult experts when appropriate. For example, if a sexual assault victim is unconscious, police will consider the assessment of medical professionals on when the victim is likely to regain consciousness, when deciding whether to proceed with the forensic medical exam without consent.
Ms Lim also questioned the decision to extend the expanded powers for forensic medical exams to auxiliary police officers, and whether they were trained for it.
Ms Rahayu said that auxiliary police officers undergo training on the use of reasonable force to be used in non-invasive forensic medical exams.
