Handcuffs and the Law

In this second column of ‘Criminal Law and Practice’, the question of handcuffing a person charged with an offence is examined.

Article 11(1) of the Constitution of Singapore provides that no person shall be made to suffer greater punishment for an offence than was prescribed by law at the time it was committed. Gynaecologist Tan Hong Yong failed to declare his complete income for two years and the Inland Revenue Authority of Singapore calculated that it was owed S$882,000 in taxes. He was found guilty and sentenced to four weeks’ imprisonment and fined three times the amount of owed taxes — S$2.4m.

In court, after the punishment was pronounced the police snapped a pair of handcuffs on his wrists. According to The Straits Times of 27 April 2002, ‘Tan was calm when the police snapped a pair of handcuffs on his wrists’.

The question is whether the snapping of handcuffs was carried out according to law or whether ‘greater punishment’ was inflicted than is permitted by law. Handcuffing the doctor was not ordered by the court. It is not prescribed in the Income Tax Act (Cap134) or in the Criminal Procedure Code (Cap 68). And yet it took place in the face of the court and it would appear that no explanation was given to the court as to why the police found it necessary to snap handcuffs on the doctor after the court had pronounced its sentence.

The police force is employed in Singapore for the maintenance of law and order, the preservation of the public peace, the prevention and detection of crime and the apprehension of offenders (s 8 of the Police Force Act (Cap 235)). The police force as part of its duties is required to take lawful measures for attending the criminal courts, keeping order therein, and escorting and guarding prisoners (s 38).

Police officers are provided with staves, arms, ammunition and other accoutrements necessary for the effective discharge of duties. The exercise of police powers and the use of weapons and equipment provided to the police must be lawful. The governing principle can be gathered by reference to the provisions on the use of force when making an arrest.

Section 24 of the Criminal Procedure Code (Cap 68) (‘CPC’) requires a police officer or other person making an arrest, to actually touch or confine the body of the person to be arrested, unless there is a submission to the custody by word or action. If arrest is resisted, or an attempt made to evade the arrest, the officer may use all means necessary to effect the arrest. Where there is submission the use of force is not permitted.

Simultaneously, s 28 of the CPC provides that the person arrested shall not be subjected to more restraint than is necessary to prevent his escape. The principle is clear:

Restraint may be imposed where it is reasonably apprehended that the prisoner will attempt to escape. The restraint should be sufficient and necessary to prevent escape. Weapons may be used only against prisoners using violence or when the police officer has reasonable ground to believe that a police officer is in danger of life or limb or that grievous hurt is likely to be caused to him.

A police officer who acts in the capacity of an escort or of a guard for the purpose of ensuring the safe custody of any prisoner or prisoners, is deemed to have all the powers and privileges granted to prison officers under s 31 of the Prisons Act (Cap 247). He may use any weapon against any prisoner escaping or attempting to escape and may continue to use the weapon so long as the attempt is actually being prosecuted. Weapons may be used against prisoners if the police officer has reasonable grounds to believe that the police officer or other person is in danger of life or limb, or other grievous hurt is likely to be caused to him.

The Director of Prisons is authorised to employ auxiliary police officers as escorts and guards when necessary to ensure the safe custody of the prisoners while the prisoners are transported to and from any prison. This ensures non-interference with the liberty of prisoners when extra hands are required for escort duty (s 34 of the Prisons Act).

Punishment

Punishment ordinarily means any fine, penalty or confinement inflicted upon a person by the authority of the law, and the judgment and sentence of a court for some crime or offence committed, or omission of a duty enjoined by law.

In United States v Brown 381 US 437; 85 S Ct 1707; 14 L Ed 2d 484 (1965), the Supreme Court of America emphatically rejected the argument that the constitutional prohibition outlawed only legislatively imposed penalties, and said:

The deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circumstances attending and the causes of the deprivation determining this fact. Disqualification from office may be punishment, as in cases of conviction upon impeachment. Disqualification from the pursuits of a lawful avocation, or from positions of trust, or from the privilege of appearing in the courts, or acting as an executor, administrator, or guardian, may also, and often has been, imposed as punishment.

The words ‘greater punishment’ are not susceptible to precise definition, but implies an injury of a graver and more serious character than punishment authorised by law. Torturing or punishing a prisoner, because others will demonstrate or attempt to escape, is neither fair nor reasonable.

If a prisoner turns violent and throws a punch at his escort, snapping handcuffs on him would not be punishment. The use of handcuffs without the prisoner providing a reason for it is in effect summary punishment imposed at police level and could amount to greater punishment.

Singapore Precedents

The court’s approach to snapping handcuffs and interfering with the liberties of accused persons in Singapore courts is not without good precedents.

The accused persons in the case of Tan Kheng Ann v PP [1965] 2 MLJ 108, had vividly demonstrated their capacity for violence by tearing down a prison settlement by setting fire to buildings and killing four prison officers. The accused were only gagged and handcuffed in the jury trial, after they had destroyed exhibits and threatened to disrupt court proceedings after being warned. The handcuffs and gags were removed soon after the accused persons conducted themselves properly. There were more than 50 accused persons charged with murder and other offences.

Nearly 100 accused persons associated with a political party in an unlawful assembly case before a district judge became unruly at a hearing and damaged some court fittings. A special dock was constructed in a school hall. Benches were screwed down to prevent their removal. The riot police stood by and court proceedings took place. The accused refused to stand up when the judge appeared. The judge told counsel for the accused and the accused that he was adjourning proceedings and coming back. He made it plain that when he next appeared he expected the accused to stand up. And if they did not he would deal with them according to law. The accused did not stand up. They were sent back to prison. They were punished for contempt of court. The courts, even when provoked and dealing with accused who had demolished a penal settlement and killed prison officers, were slow to disregard the presumption of innocence that applies to all accused persons and ensures fair trials.

In a rape case, before the High Court before Choor Singh J, one of the accused threw his slipper at the judge. The Deputy Public Prosecutor applied for the accused to be handcuffed. The application was refused. The presumption of innocence was respected by the court. The accused who sent his slipper hurtling towards the judge was punished for contempt of court at the end of the trial after he had been found guilty and convicted.

History

A historical analysis for the presence of art 11 in our Constitution is useful to appreciate the scope of art 11 and the meaning to be given to the words ‘greater punishment’ in our Constitution, because Kings, Parliaments, judges and the police are all capable of being corrupted by power and to abuse it by inflicting punishment. English legal history provides many examples, which the drafters of the American Constitution took to heart.

The prohibition in art 11 against punishment by retrospective laws and suffering greater punishment arose because Parliament, which was omnipotent in England, could pass laws called the bills of attainder, or bills of pains and penalties; the first inflicting capital and the other less severe punishment. The exercise of legislative power to inflict punishment was justified on the ground that the safety of the Kingdom depended on the death, or other punishment of the offender.

The attainder and execution of Thomas Earl of Lancaster in 1322 in England is part of English legal history. Thomas, a rebel, was tried before Edward II in person and condemned to death by the King himself.

Edward II had decreed Thomas’ death although the courts were open. The law of the land was disregarded in the omission to arraign the Earl and put him to question. Magna Carta was violated.

When Thomas’ brother Henry became guardian of the underaged monarch Edward III, he petitioned Parliament in 1327 for a reversal of his brother’s attainder and restoration of his estates. Parliament did what was asked.

In 1344, Edward III bowed to the demand of Parliament that he accept a law aimed against his own excesses:

No man of what estate or condition that he be, shall be put out of land or tenement, not taken nor imprisoned, nor disinherited nor put to death without being brought in answer by due process of law.

The law of the land required that there be ‘due process’.

The Supreme Court of America in 1868 in the case of Cummings v Missouri defined a bill of attainder.

A bill of attainder is a legislative act, which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties. [Irving Brant, The Bill of Rights, p 462.]

Constitutional Scrutiny

The Indian Supreme Court in Prem Shankar v Delhi Admn AIR (1980) SC 1535 cited with approval Sobraj’s case AIR (1978) SC 1675 which considered whether handcuff law must meet the demands of arts 14, 19 and 21 of the Indian Constitution and said:

... Irons forced on under-trials in transit must conform to the humane imperative of the triple arts 14, 19, 21. Official cruelty, sans constitutionality, degenerates into criminality. [at 1541]

The word ‘fetter’ is defined as ‘Chains or shackles for the feet; irons used to secure the legs of convicts, unruly prisoners etc; similar chains securing the wrists are called handcuffs’ (Blacks’ Law Dictionary (5th Ed)).

The Indian and Singapore constitutional provisions are not worded in the same terms, but the Indian art 14, can be said to correspond in spirit and substance to our art 12. The articles of both countries interdict arbitrary treatment, discriminatory dealings and capricious cruelty. The Indian art 19 corresponds to our art 14. The articles prescribe restrictions on free movement unless in the interest of the general public. The Indian art 21 likewise corresponds to our art 9. Articles 21 and 9 of India and Singapore are to use the language of the Supreme Court of India, the sanctuary of human values, prescribe fair procedure and forbid barbarities, primitive or procedural.

The Supreme Court of India in 1980 considered the legal ramifications of handcuffing prisoners and the classification of prisoners and said:

We lay down as necessarily implicit in arts 14 and 19 that when there is no compulsive need to fetter a prisoner’s limbs, it is sadistic, capricious, despotic and demoralising to humble a man by manacling him … . The minimal freedom of movement which even a detainee is entitled to under art 19 cannot be cut down cruelly by application of handcuffs or other hoops. It will be unreasonable to do so unless the State is able to make out that no other practical way of forbidding escape is available, the prisoner being so dangerous and desperate and the circumstances so hostile to safe-keeping. [Prem Shankar supra at 1542]

Turning to distinctions made between prisoners for purposes of using handcuffs the court said:

... Apart from the part that economic and social importance cannot be the basis for classifying prisoners for purposes of handcuffs or otherwise, how can we assume that a rich criminal is any different ... in the matter of security risk?

... the policeman’s easy assumption or scary apprehension of subjective satisfaction of likely escape if fetters are not fitted on the prisoner is not enough. [at 1542]

Turning to Fundamental Liberties enshrined in the Indian Constitution, the court said:

Fundamental Rights are heavily loaded in favour of personal liberty even in prison. The escorting officer who handcuffs a prisoner to be produced in court must contemporaneously record reasons for doing so and show the reasons so recorded to the presiding judge and get his approval so that there is control over possible arbitrariness in applying handcuffs ... Once the court directs that handcuffs shall be off, no escorting authority can overrule judicial direction. This is implicit in art 21, which insists upon fairness, reasonableness and justice in the procedure, which authorises stringent deprivation of life and liberty. The ratio in Maneka Gandhi’s case read in proper light, leads us to this conclusion. [at 1542]

The principle of reasonableness and fair and just procedure accorded by the Indian authorities is part of our law (see Ong Ah Chuan v PP [1981] AC 648 at 660).

The Indian court described handcuffing as follows:

Handcuffing is prima facie inhuman and, therefore, unreasonable, is over-harsh and at the first flush, arbitrary. Absent fair procedure and objective monitoring, to inflict ‘irons’ is to resort to zoological strategies repugnant to art 21. Thus, we must critically examine the justification offered by the State for this mode of restraint. Surely, the competing claims of securing the prisoner from fleeing and protecting his personality from barbarity have to be harmonised. To prevent the escape of an under-trial is in public interest, reasonable, just and cannot, by itself, be castigated. But to bind a man’s hand and foot, fetter his limbs with hoops of steel, shuffle him along in the streets and stand him for hours in the courts is to torture him, defile his dignity, vulgarise society and foul the soul of our constitutional culture. [at 1541–42]

The punitive aspect of handcuffs was considered:

... binding together either the hands or the feet or both has not merely a preventive impact, but also a punitive hurtfulness. Manacles are mayhem on the human person and inflict humiliation on the bearer. The Encyclopaedia Britannica (1973 Ed) Vol II, p 53, states, ‘Handcuffs and fetters are instruments for securing the hands or feet of prisoners under arrest, or as a means of punishment.’ The three components of ‘irons’ force on the human person must be distinctly understood. Firstly, to handcuff is to hoop harshly. Further, to handcuff is to punish humiliatingly and to vulgarise the viewers also. Iron straps are insult and pain writ large, animalising victim and keeper. Since there are other ways of ensuring security, it can be laid down as a rule that handcuffs or other fetters shall not be forced on the person of an under-trial prisoner ordinarily. [at 1542]

The court recognised the need to use handcuffs and said:

Ignominy, inhumanity and affliction, implicit in chains and shackles are permissible, as not unreasonable, only if every other less cruel means is fraught with risks or beyond availability. So it is that to be consistent with arts 14 and 19 handcuffs must be the last refuge, not the routine regimen. If a few more guards will suffice, then no handcuffs. If a close watch by armed policemen will do, then no handcuffs. If alternative measures may be provided, then no iron bondage. This is the legal norm. [at 1542]

It is submitted that this was, and must also be, the legal norm in the Republic of Singapore. It is not enough for a person to be charged with a grave offence. Evidence of desperate behaviour geared to make good his escape and the like are necessary before handcuffs are applied. When escorting officers handcuff a prisoner produced in court, reasons must be given and the court’s approval obtained. Justice must not only be done, it must also be seen to be done.

Unlike India, art 10 of the Singapore Constitution provides:

10(1) No person shall be held in slavery.

(2) ...

Slavery cannot be limited to merely being held in bondage. The American courts have in interpreting the corresponding provision on slavery considered events that carry with them the trappings of slavery or the ‘badge of slavery’. This is an additional reason why an accused person or a convicted person should not have handcuffs snapped on his wrists when he is calm.

Conclusion

Police officers and prison officers are bound by the law and cannot decide on supplementary sentences or inflict greater punishment. It may well be that there are police orders on the use of handcuffs and the like, but police orders and legislatively imposed penalties are all subject to the Constitution and any law which is inconsistent with the Constitution to the extent of inconsistency is void (art 4).

The meaning that should be given to the words ‘life’ and ‘liberty’ in art 9 to quote Field J in the American case of Munn v Illinois 94 US 113 (1877) is:

Something more than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world.

By the term ‘liberty’ as used in the provisions, something more is meant than mere freedom from physical restraint or the bounds of a prison. It means freedom to go where one may choose, and to act in such manner, not inconsistent with the equal rights of others, as his judgment may dictate for the promotion of his happiness; that is, to pursue such callings and avocations as may be most suitable to develop his capacities, and to give them their highest enjoyment.

Snapping the handcuffs on Dr Tan was greater punishment than the law annexed to the income tax offence when committed. If the handcuffs were snapped on his wrists under some law or order, it was a law or order that aggravates the tax offence and makes the punishment greater than when it was committed. It is not consistent with the Constitution.

KS Rajah, SC
Criminal Practice Committee
Law Society of Singapore