The Recording of Confessions This article looks at the path to bringing a criminal to justice.
Criminal law defines acts and omissions that are criminal, the defences that may be raised to accusations of criminality and the punishments that may be imposed on the offender.
Criminal procedure is a field of law that spells out the procedure that must be used to bring criminal wrongdoers to justice. It is concerned with investigation, detection, prevention, prosecution and the trial of offences in
the courts having different jurisdictions and sentencing powers.
Various agencies, all branches of the executive, are conferred with wide powers of investigation. Police officers may require the attendance of any person who appears to be acquainted with the circumstances of the case and
orally examine the person supposed to be acquainted with the facts. Any police officer may arrest any person against whom a reasonable suspicion exists of his being concerned in any seizable offence and record statements
admissible in evidence.
The lesson of history is that the conferring of large powers of investigation and adjudication carries with it the risk of abuse. Coke, who made ‘due process of law’ identical with Magna Carta’s ‘law of the land’, was also the ruthless Attorney-General who, accepting the standards of Elizabethan England, sent Sir Walter Raleigh to the gallows by methods that reduced the trial to a mockery of justice. The same man was the fair-minded incorruptible Chief Justice who stood up to the King and was thrown out of office for refusing to become a stooge. He was also the political rebel in Parliament who risked his life by heading the group that imposed the Petition of Rights on Charles the First in 1628. The English, however, possessed no written Constitution based on the sovereignty of the people that told the King and Parliament the limits of their authority. The separation of powers in England is set out in the judgment of Lord Templeman in M v Home Office [1994] AC 377.
A vital requirement for the rule of law is a judiciary that is independent but bound by law, for it was recognised as early as 1780 that there is such a thing called judicial tyranny.
The discretion of a [j]udge is the law of tyrants; it is always unknown. It is different in different man. It is casual and depends upon our constitution, temper, and passion. In the best it is often times caprice; in the worst
it is every vice, folly and passion to which human nature is liable. [Lord Chief Justice Camden Courts and Policy: Checking the Balance (1995) Wellington, Brookes, p 188]
The separation of powers as it existed in England existed in a modified form in Singapore when it was a colony, as befits a colony, but our judges were in the main regarded as independent and bound by the law. The judiciary,
however, was not burdened with a duty to harmonise the Criminal Procedure Code with the articles in a written Constitution.
The Constitution
The Constitution of the Republic of Singapore came into force on 9 August 1965. The nature of republican government means that the censorial power is in the people over the government and not in the government over the people.
The rights of individuals were placed beyond the reach of any branch of government. Guarantees are directed against abuse of executive power, legislative power and against the community itself; or in other words, against the
majority in favour of the minority.
Part IV of the Constitution has articles that have a bearing on: (a) the life and liberty of the person, prohibition of slavery and forced labour which applies to both the community and the government; (b) protection against
retrospective criminal laws which limits legislative power; (c) repeated trials which apply to the executive and the judiciary; and (d) equal protection which applies to legislative, executive and judicial power, all of which have
a bearing on criminal law and criminal procedure.
The government has a responsibility to care constantly for the interests of racial and religious minorities. A Presidential Council for Minority Rights exists which requires Bills to be scrutinised for differentiating measures.
(See arts 152, 68, 76 and 78.)
The Criminal Procedure Code
The Criminal Procedure Code, amended from time to time, has a history of over 190 years and was ‘existing law’ in August 1965. It continues in force after the commencement of the Constitution. The Code is in force subject to
art 162 and has to be construed with:
The modifications, adoptions, qualifications and exceptions must be made not only by the courts but also by the prosecution so that life and liberty is not deprived arbitrarily and persons are not subjected to unnecessary or
greater punishment or convicted otherwise than by an adversarial process that is fair, with the accused being defended by counsel in accordance with law and the liberties of individuals protected by the supreme law.
The Criminal Procedure Code plays a crucial role in the criminal justice system. It is, nonetheless, legislation which was drafted and enacted mostly during a colonial era in which the legal validity of its provisions could not
be questioned by reference to a written Constitution.
The Westminster Model vs the Singapore Model
The Constitution of the Republic of Singapore is based on the Westminster model but it took away parliamentary sovereignty as understood by the English Parliament. All laws are subject to judicial review and scrutiny by the
Presidential Council for Minority Rights, when matters are referred to it, including Bills. A useful definition of a ‘differentiating measure’ is given in art 68 which could be invoked when art 12 is considered to understand the
amplitude of equal protection and minority rights. Direct and indirect prejudice to persons are relevant under the Constitution.
The courts are bound by law to enforce the Criminal Procedure Code in a way that is consistent with the Constitution, as required by art 162 and Part IV of the Constitution.
The continued operation of the Criminal Procedure Code and the reliance on it by prosecutors on provisions, which may not reflect the fundamental rights guaranteed in the Constitution require both counsel appearing for the
parties and judges to ensure that the life or liberty of an individual is not taken away other than ‘in accordance with law’.
In Ong Ah Chuan v PP [1981] AC 648, Lord Diplock made it plain to the prosecution that the Privy Council, the then highest court of the land, was not disposed to find that art 9(1) justifies all legislation whatever its
nature. (See previous article in the August 2002 issue of the SLG.)
The Privy Council described the Singapore Constitution as one founded on the Westminster Model (at 670-G) and a Constitution based on the separation of powers (at 673-H) meaning:
The key features of the Westminster system of parliamentary government are:
The key feature of the Westminster model of the Constitution is that Parliament may allow the legislature to empower the executive government to make statutory rules and orders possessing the binding force of law, but it
requires a strict separation of judicial powers or else art 4 of the Constitution, which makes the Constitution the supreme law and empowers the courts to declare any law enacted by the legislature void for inconsistency with the
Constitution, would be meaningless. For the purpose of enforcing the law, the courts are armed with coercive powers exercisable in proceedings for contempt of court.
Encroachment on Judicial Power
It is useful to look at two sections of the Criminal Procedure Code and discuss the prevailing practice in the context of the Constitution’s requirement that judicial power shall be vested in the Supreme Court and in the
subordinate courts (art 93).
Section 124 of the Criminal Procedure Code empowers magistrates to record any statement or confession. The procedure to be followed when confessions are recorded is spelt out. The magistrate records confessions in the exercise
of powers vested in him by s 124 for the protection of accused persons.
The accused is not required to be taken to a doctor before or after a confession is recorded. A magistrate is free to direct a medical examination but that in itself would raise a question as to whether there was a doubt in the
magistrate’s mind. Very often a magistrate would direct the accused to be thereafter detained in a Remand Prison and not held in police custody. It would most certainly be done if the accused asks for it in most cases. Confessions
recorded by a magistrate are rarely challenged in court. Time that is spent on a trial within a trial would be saved. We now have more magistrates than in colonial times. This section, however, is not invoked. The courts have not
insisted that confessions be recorded by those vested with the powers to do so.
The prevailing practice is for police officers to record statements under s 121 of the Code and ask for its admission in evidence under the provisions of s 122(5). The investigating officer in charge of the case frequently
records the statements.
The statement is usually recorded in police stations behind closed doors. It generally follows long hours of interrogation and re-interrogation and in the absence of counsel. The accused rarely makes statements in one of the
official languages in their own handwriting.
To satisfy the court that the statement was made voluntarily, the accused persons are taken to a medical doctor before and after the statement is recorded. The accused is held in police custody or remanded after confessions are
recorded. If accused persons can be taken to and from doctors, they can also be taken to and from magistrates.
The police have not been, strictly speaking, vested with powers to record confessions. The police power is limited to recording statements. The police are not required to record statements in the format prescribed for
magistrates. The procedure prescribed for magistrates is not strictly followed even though it is a fair procedure when the police record confessions.
Police officers know when a statement is an admission and when a statement is a confession. The practice in colonial times would have been to take the accused before a magistrate. Failure to do so would have judicial
consequences.
The procedure adopted by the executive cannot be justified on the grounds that ‘it applies to all accused persons’. It cannot be right for the executive to ignore substantive procedural law made by Parliament in the Code to
safeguard the interests of the accused for the recording of confessions and use the backdoor in s 122 which, inter alia, provides that statements which may be confessions or admissions are admissible when they are proven to have
been voluntarily made.
When confessions are recorded by the police, the least that can be done is follow the procedure prescribed for the magistrates. The question and answer format should be followed instead of the narrative.
The Indian Supreme Court in Nika Ram v State of Himachal Pradesh AIR 1972 SC 2077 has ruled that in a case where only First Class Magistrates are empowered to record confessions, it would not be proper for Second Class
Magistrates to do so. The confession was held to be inadmissible at the trial. If a Second Class Magistrate is not so empowered, it would apply with greater force to a police officer recording confessions.
Conclusion
It is submitted that notwithstanding the provisions of s 122(5) and 122(6), which empower a police officer to record defences on which the accused intends to rely, a confession recorded by a police officer when it was open to
him to reasonably comply with s 124 is not a confession recorded ‘in accordance with law’ within the meaning of art 9(1) of the Constitution. Sections 122(5), 122(6) and 124 must be construed with the necessary modifications,
adaptations, qualifications and exceptions to bring it into harmony with arts 9(1), 9(3) and 93 of the Constitution.
It would have been taken for granted by the makers of the Constitution that s 124 of the Code, to which citizens could have recourse for the ‘protection’ of life and liberty assured to them by arts 162 and 9(1) and s 124, would be a system of law that did not flout art 9(1) and 9(3). The police are not permitted to adopt a procedure that is obviously unfair. (See Haw Tua Tau v PP [1982] AC 136 at 148.) If s 122(5) and 122(6) are construed with the necessary modifications, adaptations, qualifications and exceptions to bring it into conformity with s 124 of the Code and art 93 of the Constitution, we will see more judicial confessions and fewer extra-judicial confessions and less trials within a trial.
A ‘system of criminal law enforcement which comes to depend on the “confession” will in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently’ obtained. (See
Escobedo v Ilinois 378 US 478 (1964).)
Counsel plays an important role. The courts cannot be expected to embark on an exercise of harmonisation without counsel raising constitutional issues in court.
KS Rajah, SC
Criminal Practice Committee
Law Society of Singapore