Singapore passes law for indefinite detention of serious offenders

SINGAPORE: The Criminal Procedure (Miscellaneous Amendments) Bill was passed in Parliament on Monday (5 February) and introduces crucial provisions aimed at addressing dangerous offenders involved in serious sexual or violent crime cases.

Under the enhanced sentencing regime, these offenders will no longer be automatically released upon completion of their jail terms, especially if there are indications of a propensity to re-offend.

The Bill encompasses approximately 20 sets of amendments, notably incorporating the Sentence for Enhanced Public Protection (SEPP) law and establishing a legislative framework for forensic medical examinations (FMEs).

During the thorough three-hour debate on the second reading of the Bill, 15 MPs and Nominated MPs raised pertinent questions, emphasizing the need for a careful examination of the proposed amendments.

Mr Shanmugam, Minister of State for Home Affairs, along with Sun Xueling, Minister of State for Home Affairs, and Rahayu Mahzam, Senior Parliamentary Secretary for Law, delivered their addresses on Monday, providing valuable insights into the Bill before its successful passage.

“We have consulted quite extensively in preparing this Bill,” said Mr Shanmugam, adding: “The changes will do much to strengthen our criminal justice system.”

With the enforcement of the SEPP, decisions regarding the release of offenders sentenced under this law will rest with the Home Affairs Minister, guided by advice from a detention review board, as elucidated by MHA Minister Shanmugam in previous statements.

The scope of SEPP is confined to individuals convicted of severe violent offences, including culpable homicide and attempted murder, as well as serious sexual offences such as rape and sexual penetration of a minor.

Eligible offenders must be at least 21 at the time of the offence and demonstrate a substantial risk of causing serious physical or sexual harm to others.

A court will determine whether to impose SEPP on an offender, specifying a minimum sentence ranging from five to 20 years, potentially extending to life imprisonment.

Following the completion of the minimum jail term, the MHA Minister will evaluate the offender’s suitability for release “on the license,” incorporating conditions like e-tagging and counselling.

Conditions of release are subject to a biennial review, ensuring ongoing assessment. If deemed suitable, the offender can be unconditionally discharged, concluding their sentence.

Warrantless authority in arrestable offence investigations

Several changes regarding law enforcement capabilities were also introduced, particularly about the powers related to the collection of evidence.

Under the amended regulations, police officers gain the authority to conduct searches without a warrant when they possess a reasonable belief that a suspect involved in an arrestable offence holds or controls relevant evidence.

This builds upon their existing capability to conduct warrantless searches if there is a belief that the individual is unlikely to produce evidence upon request.

An additional provision criminalizes the refusal of an accused person to undergo an FME without a reasonable excuse.

For examinations not involving intimate parts or invasive procedures, such as mouth swabbing or hair sample collection, “reasonable force” may be employed.

Individuals accused of refusing FMEs without a reasonable excuse may face imprisonment for up to seven years, fines, or a combination of both.

A nuanced approach is adopted concerning victims’ consent for FMEs.

Generally, informed consent will be required from the victim or their authorized decision-maker based on the victim’s age. Exceptions include situations like comatose victims, where an exception is made only to prevent the loss, degradation, or contamination of crucial evidence.

In cases where the victim’s condition is temporary, the police commit to making efforts to wait for the individual to recover and provide consent for the FMEs.

MPs raised concerns over the impact of the new sentencing regime

As Members of Parliament (MPs) acknowledged the introduction of the new sentencing regime, they recognized its limitation to the most serious offences and recalcitrant offenders.

However, concerns were voiced regarding how the regime would navigate the delicate balance between individual rights and the imperative to protect the public.

Minister Shanmugam at the onset of the debate, clarified that the new sentencing regime doesn’t merely focus on enhancing public protection but also aims to fortify the motivation for inmates to actively engage in their rehabilitation.

He suggested that this approach might lead to judges imposing shorter initial sentences, anticipating that the sentence under the SEPP is the minimum term.

WP Chair Sylvia Lim expresses concerns over potential over-detention under SEPP

During the debate, Sylvia Lim, Workers’ Party Chair, expressed reservations about the involvement of Auxiliary Police Officers (APOs) in FMEs.

Additionally, she voiced apprehensions regarding the potential for over-detention under SEPP. This concern arises from the fact that a SEPP offender could face detention for an indefinite period, extending up to life, with an indeterminate release date.

Nominated MP Usha Chandradas raised a significant point during the parliamentary discussion, referring to a 2021 UK report on sentences of imprisonment for public protection—a form of indeterminate imprisonment in place from 2005 to 2012.

The UK report highlighted that inmates subjected to this form of imprisonment consistently experienced mental and emotional deterioration. Notably, the rate of self-harm among these individuals was approximately double that of those serving a life sentence.

In light of these findings, Ms Usha Chandradas questioned the provisions for rehabilitative support and mental health treatment available to SEPP offenders and their family members.

Shifting focus to public protection in post-sentencing decision-making

Ms Rahayu addressed concerns regarding the authority for further detention, highlighting a crucial distinction.

She emphasized that the decision-making process post the court-imposed minimum sentence shifts focus from punishment to public protection.

“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.”

“It involves a complex assessment of multiple factors, including the risk that the offender might re-offend, his conduct in prison, and his rehabilitative progress and prospects. ”

“The logical and principled approach is for this to be an executive decision, ” Ms Rahayu added.

She clarified that such decisions could be subject to judicial review under specific circumstances.

she highlighted the existing authority of the MHA Minister in cases of corrective training, preventive detention, and life imprisonment, reinforcing the legal framework guiding early release.

Responding to concerns raised by Ms Lim, Ms Rahayu stressed the importance of an independent risk assessment report, typically conducted by IMH psychiatrists.

Imposition of the SEPP on a first-time offender necessitates a court-deemed substantial threat of serious harm.

Ms Rahayu clarified that offenders under SEPP will not be segregated from other inmates but will have access to rehabilitative programs available to all prisoners. Additionally, targeted psychology-based interventions will be provided.

SPS Rahayu dismissed the notion that searches without a warrant equate to “stop-and-frisk”

Ms Rahayu dispelled concerns by emphasizing that conducting searches without a warrant does not equate to a “stop-and-frisk” policy involving body searches on the streets.

Nadia Ahmad Samdin, PAP MP for Ang Mo Kio GRC raised concerns about the potential misuse of search powers and its impact on the trust between the police and citizens, even if accidental.

She emphasised the potential impact on trust between the police and citizens.

Ms Rahayu reiterated that specific prerequisites must be met for searches without a warrant.

If the property owner is not a suspect and cannot be contacted, police must seek a court order before proceeding with the search.

Ms Rahayu reiterated that searches without a warrant are permissible in investigations of arrestable offences, where police believe a suspect possesses or controls evidence.

However, for non-arrestable offences, police officers must obtain an order from the public prosecutor or a magistrate before conducting such searches.

Addressing concerns on forensic medical exams

MPs also sought clarification on what constitutes “reasonable force” for non-invasive procedures against accused persons.

Ms Rahayu explained that the police have established protocols, and the determination of “reasonable force” depends on the specific circumstances.

For instance, pulling on the cheek to swab the inside of a suspect’s mouth may be considered reasonable, especially when dealing with evidence that rapidly degrades.

Concerns were raised about measures to safeguard children and vulnerable persons undergoing forensic medical exams.

Ms Rahayu assured that minors and vulnerable individuals may be allowed to have a “trusted person” for support during the process, provided it does not compromise the investigation.

MPs inquired about the circumstances in which police may proceed with a forensic medical exam without the victim’s consent.

Ms Rahayu clarified that police will assess the victim’s ability to consent and consult experts as necessary.

For instance, in cases where a sexual assault victim is unconscious, medical professionals’ assessment of the likelihood of the victim regaining consciousness will inform the decision to proceed with the exam.