Commentary: Time to reconsider if accused persons should be named before conviction

Recently, veteran athletics coach Loh Siang Piow was acquitted of two charges of outraging the modesty of an athlete. The judge found that there were serious doubts about the veracity of the complainant’s testimony and that she had exaggerated aspects of her evidence.

On the same day, former Singapore Idol judge, Ken Lim, was charged with outrage of modesty. He intends to claim trial. Lim’s case has generated considerable interest from the public. 

The juxtaposition of these two cases highlights an uncomfortable truth: An accused person may very well be innocent of whatever he has been accused of, yet the moment he is charged, he is subject to a barrage of speculation and censure. Even if his name is eventually cleared, the damage will already have been done.

This is inconsistent with a fundamental principle of our justice system, that one is presumed innocent until and unless that one is found guilty by a court of law.

Yet, accused persons commonly suffer negative consequences even before they have had a chance to mount their defence, let alone have judgment rendered. They may be ostracised, lose their jobs, and suffer from extreme anxiety. 

The law should not turn a blind eye to these real and serious, though non-legal, consequences.

Our criminal justice system protects not just victims and society in general. The safeguarding of the rights of the accused person is also a key requirement of justice.

The issue is not whether offenders should be publicly named — they should — the question is when they should be publicly named.

A better way to balance the rights of the accused person and the interests of open justice would be to prohibit the publication of the accused’s name, until he is convicted and has exhausted his avenues of appeal. This would prevent unwarranted censure of people who are eventually acquitted.

THE CURRENT POSITION

In Singapore, the criminal justice system errs on the side of the principle of “Open Justice”. 

This means that justice must not only be done but be seen to be done. This is why court proceedings are generally open to the public, and the names of parties to a case are openly publicised.

This is not the case in all jurisdictions. 

Law Minister K Shanmugam in 2021 cited some examples of contrary practice: In Switzerland, accused persons may be granted anonymity if the Court is satisfied that they could be exposed to serious danger or other serious prejudice. 

In New Zealand and Australia, where there are jury trials, the Court may prohibit disclosure of an accused person’s identity if disclosure could create a serious risk of prejudice to a fair trial. 

However, Mr Shanmugam explained that Singapore follows the United Kingdom model, erring on the side of Open Justice. This allows, for example, other unidentified victims of serial offenders to come forward and report, once the offender has been publicly named.

Mr Shanmugam acknowledged that this system has its drawbacks, saying: “The downside of this second approach is that, of course, the reputation of accused persons is often irreparably damaged by the publicity from media coverage of an ongoing criminal trial, even if they are acquitted at the end of the day.”

He stressed that the position is not set in stone and that the Government “will keep reviewing this”. 

Mr Shanmugam highlighted that the issue is really, “what helps in advancing [and] maintaining rule of law and the justice system.”

It is timely to consider whether the current environment is starting to point in favour of anonymity for the accused, rather than the reverse.

RISK FACTORS

First, there is a high risk of public bias towards accused persons. One of my students once wrote in an assignment that, prior to her law school experience, she had always assumed that an accused person would be guilty, since they would not have been charged without good reason. 

Singapore is a victim of its own success in this regard. Trust in law enforcement and public institutions is very high: For example, in the 2022 World Justice Project report, Singapore was rated 0.83/1 in terms of the effectiveness of the criminal justice system and 0.77/1 in terms of impartiality. 

One solution to this problem is obviously better public education about the presumption of innocence, but it is unrealistic to expect that this will get through to everyone. 

The problem also needs to be mitigated by more pragmatic solutions, such as simply not disclosing the name of the accused.

Second, there is a growing interest in criminal cases. 

For example, the high-profile acquittals of Ms Parti Liyani and Dr Yeo Sow Nam generated a lot of public discussion. Ms Parti Liyani was acquitted of theft in 2020, and Dr Yeo was acquitted of outrage of modesty in 2021. 

In both cases, the accused persons suffered several years of stigma and anxiety before their eventual acquittals. The effects are not just confined to the accused person: Dr Yeo’s family also suffered humiliation and hurt from seeing their father’s name dragged through the mud.

The growth of online news sources has made it such that members of the public need no longer attend trials in person or rely on reliable news sources. 

News travels via social media and gets reduced to the most sensational soundbites. In the TikTok era, it is easy for the public to get a warped view of criminal cases.

The principle of open justice is designed to facilitate just that, justice, not to provide fodder for the rumour mill. 

The assumption that publication of the accused’s name does more good than harm, systemically speaking, must be reassessed in light of modern information consumption patterns.

Third, there is a growing risk of online vigilantism. In the age of cancel culture, it is all too easy to get people riled up about alleged wrongs. In some cases, this can go beyond mere outrage and evolve into abusive behaviour.

For example, in 2016, freelance dog trainer Mark Lin You Cheng began a campaign of online harassment against Ms Soon Kim Choo after incorrectly alleging that she had been involved in a hit and run with a dog near an animal shelter. 

Ms Soon received phone calls and messages harassing her over the incident even though she was not the driver involved.

Online vigilantism could be corrosive to respect for public institutions, including the courts and the Public Prosecutor. 

It is but a small step for online vigilantes to decide that the justice system has failed them and that they will mete out what they consider to be just punishment instead.

It is therefore better to head off such danger by simply not publishing the names of accused persons, thus depriving online vigilantes of targets for their venom.

THE WAY FORWARD

The criminal justice system already has a mechanism for protecting the anonymity of victims and witnesses. It is called a gag order.

Currently, gag orders on the identity of the accused are generally only made for the benefit of victims – that is, where exposure of the accused’s identity might lead to identification of, and consequent trauma to, the victim.

Gag orders could be expanded to cover the identity of the accused. As argued above, there are good reasons for preserving the anonymity of an accused person as well.

A potential downside of not naming an accused is that he might go unnoticed and pose a danger to society while out on bail.

However, courts could be given the discretion to name an accused in such cases, for example, where the accused is likely to reoffend and it is in the public interest to make the public aware of his identity so that people can protect themselves.

Granted, making gag orders for every case could be cumbersome and difficult to enforce, but operational difficulties can and should be overcome, if it is in the overall interest of the justice system.

In summary, protecting the identity of the accused person prior to conviction does not offend against the principle of open justice. 

The facts of the case can still be reported, albeit with names redacted. The identity of the offender can still be revealed, after conviction and after all possibility of acquittal is exhausted. 

Unidentified victims of the offender can still be encouraged to come forward, albeit after conviction.

 

ABOUT THE AUTHOR:

Alexander Woon is a lecturer at Singapore University of Social Sciences’ School of Law and is a lawyer at RHTLaw Asia. He was a deputy public prosecutor at the Attorney-General's Chambers.