Public Defender’s Office may be set up this year to provide criminal legal aid

SINGAPORE: The Ministry of Law aims to establish a Public Defender’s Office (PDO) by the end of this year, announced Law Minister K Shanmugam on Monday (Apr 4).

This proposal comes after Mr Shanmugam said in 2020, while addressing the Parti Liyani case, that the Government would study the details and feasibility of a public defender scheme.

Former domestic worker Ms Parti was found guilty of stealing from her employer, former Changi Airport Group chairman Liew Mun Leong. She was eventually acquitted after the High Court found several issues with the conviction and how the case was handled

“We want to enhance access to justice for vulnerable individuals in Singapore,” said Mr Shanmugam, who is also the Home Affairs Minister.

The PDO will be fully funded by the Government, he said, adding that the office will be established after a Bill on the matter has been passed in Parliament.

“This will also help preserve the pro bono spirit of the legal fraternity, which has been a key pillar of legal aid,” said Mr Shanmugam.

WHAT WILL CRIMINAL LEGAL AID COVER?

The Bill also proposes to expand criminal legal aid coverage in terms of income percentile and the types of offences covered.

The income coverage of the Criminal Legal Aid Scheme will be increased from the 25th to the 35th percentile of resident households, said Mr Shanmugam, raising the per capita household income cut-off from S$950 to S$1,500.

“This means more needy Singaporeans who require the services of a criminal defence lawyer will be covered,” he said.

Under the Law Ministry’s proposed changes, the type of offences under the criminal legal aid system will be expanded.

But it will not cover regulatory offences like traffic summons and minor departmental charges. Offences under nine Acts that have the primary purpose of deterring specific behaviours will also not be covered. These include gambling and betting, organised and syndicated crime as well as terrorism.

“Offences under these Acts bring about significant negative externalities to society. Public funding, I think it'll be difficult to justify being used towards such cases,” said Mr Shanmugam.

With these proposed changes, the caseload for criminal legal aid could increase by 50 per cent or "a little bit more", said Mr Shanmugam, noting that the Criminal Legal Aid Scheme covered about 712 cases in 2020.

This number could increase further if the take-up rate for legal aid increases, he added. 

WHO WILL FORM THE PDO?

The PDO will be set up as a department under the Ministry of Law and will be headed by a Chief Public Defender.

Singapore will adopt a “hybrid model” of criminal legal aid, which means that the PDO will have full-time lawyers as employees, who will take on cases as public defenders.

The PDO will scale up over time, said Mr Shanmugam.

While public defenders will take on all of the cases “in its early years”, the PDO will later start outsourcing some cases to a panel of qualified lawyers, he added.

The Government will continue to work with and provide some co-funding to the existing Criminal Legal Aid Scheme, established in 1985, to deal with some criminal cases.

Details of the funding have to be assessed and discussed, said Mr Shanmugam.

“Other details will also have to be worked out, including cases which PDO will handle and cases which CLAS (Criminal Legal Aid Scheme) will handle.”

The PDO will have the discretion to exclude cases if the Chief Public Defender thinks that representation “may not make a material difference” to the case’s outcome, said the minister.

“They will have to apply a strong means test approach. This includes cases involving offences with established sentencing frameworks,” he added.

In establishing a PDO in Singapore, the Government will need to minimise abuse of the system and manage costs to ensure fiscal sustainability, he added.

The Government has studied criminal legal aid models in 11 jurisdictions, Mr Shanmugam noted.

In systems where criminal legal aid is fully funded by the state, escalating costs are a major concern, and there are various reasons for the increase in costs, he added. 

“They include the lack of a robust means and merits assessment framework and safeguards as the coverage expands invariably and inevitably. And second, overbilling by private lawyers to whom criminal cases have been outsourced to.”

PREVENTING ABUSE OF CRIMINAL LEGAL AID

Some aid lawyers in other countries overbill and flout the rules for their own benefit, said Mr Shanmugam.

There are also “unmeritorious applicants” who take advantage of legal aid, including people who are asset-rich or wealthy but find ways to meet the eligibility criteria, he added.

In some cases, the applicants fulfil the means and merits tests, but are perceived to be morally undeserving of aid.

“The first two categories of abuse, we can try and have systems and frameworks to try and detect and deter such practices. The last category is trickier,” said Mr Shanmugam.

"Legal aid cannot depend on public outrage, because once we categorise, and the means and merits tests are satisfied, and we are going to exclude certain types of cases.

"But as long as it falls within the categories of cases which will be covered by legal aid, and public outrage on a case by case basis cannot be the basis on which legal aid is given or not given. We will need to think through and explain our position carefully to the public." 

The Law Society Council and Criminal Bar were also concerned that the expansion of legal aid would affect the livelihood of lawyers who were providing paid legal services, he noted.

“Of the newly eligible people who will benefit from expanded coverage, 60 per cent would likely be litigants-in-persons, meaning the impact on paid work for lawyers should not be substantial,” he added. 

“We have to do the right thing here. 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."