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Explainer: What does it mean to drop a criminal charge?

Activist Jolovan Wham was recently convicted of an offence of unlawful assembly for standing outside the State Courts with a sign saying: “Drop the charges against Terry Xu and Daniel De Costa.” Xu and De Costa had earlier been charged with criminal defamation for publishing an article alleging corruption in the Government. Wham arranged for a photo to be taken of himself holding the sign and then uploaded it to Facebook with the hashtag “#solidarity”.

Explainer: What does it mean to drop a criminal charge?

A charge can be withdrawn at any time before the accused is convicted, which means found guilty by a court. This is sometimes known as the charge being dropped. It means that the prosecution stops.

Activist Jolovan Wham was recently convicted of an offence of unlawful assembly for standing outside the State Courts with a sign saying: “Drop the charges against Terry Xu and Daniel De Costa.”

Xu and De Costa had earlier been charged with criminal defamation for publishing an article alleging corruption in the Government. Wham arranged for a photo to be taken of himself holding the sign and then uploaded it to Facebook with the hashtag “#solidarity”.

It is perfectly legitimate to ask the prosecution to drop a charge but the way in which Wham did so was inappropriate.

WHAT IS A CHARGE?

A charge is a formal accusation that someone has committed a crime.

In legal terms, a crime is called an offence. Offences are defined by Acts of Parliament, also known as statutes.

When a crime occurs, it is investigated by an enforcement agency, usually the police.

After investigations, generally, the file is sent to the Attorney-General’s Chambers (AGC) for a decision on whether to prosecute the case.

AGC will assess whether there is enough evidence to prove that the offence was committed. If the decision is made to prosecute, then the accused person will be taken to court to be charged.

WHAT DOES IT MEAN FOR A CHARGE TO BE DROPPED?

A charge can be withdrawn at any time before the accused is convicted, which means being found guilty by a court.

This is sometimes known as the charge being “dropped”. It means that the prosecution stops.

The decision to drop a charge is exclusively within the power of the Public Prosecutor.

This is set out in Article 35 of the Constitution. The Public Prosecutor has the power to start and stop all prosecutions — this is known as prosecutorial discretion.

The Attorney-General is the Public Prosecutor and he is assisted by officers of the AGC called Deputy Public Prosecutors.

If a charge is dropped, one of several things might happen:

First, the charge might be withdrawn unconditionally.

In this case, the accused goes free entirely. This is a form of discharge amounting to acquittal which means the accused cannot be charged for the same incident again.

This may happen if there is some new evidence that casts doubt on the guilt of the accused. For example, in the case of Dr Yeo Sow Nam last year, when it appeared that a key witness was unreliable.

Secondly, the charge might be withdrawn and a stern warning administered instead.

This is also a discharge amounting to acquittal.

While the accused cannot be charged again for the same incident, the stern warning goes into AGC’s internal records and if the accused is involved in criminal investigations again, AGC may consider the stern warning when deciding whether to prosecute.

This may happen, for example, where the offender is young and the prosecution thinks he deserves a second chance.

Thirdly, the charge might be withdrawn and a conditional warning administered.

A conditional warning means that the charge is withdrawn on condition that the accused does something, usually the condition includes being crime-free for a certain period.

If the accused breaches the condition of the warning, then the charge will be revived — that is the prosecution will start again.

This is a discharge not amounting to acquittal.

This may happen where there is a possibility that the offender might be tempted to offend again, and needs some deterrence — for example, the accused who spied on Monica Baey in a female toilet in the National University of Singapore in 2019 was given a conditional warning.

Fourthly, the charge might be withdrawn upon payment of composition.

Composition means that the accused pays a sum of money to the relevant enforcement agency and the charge is then dropped.

Not all cases are eligible for composition — it is usually reserved for less serious, regulatory offences, such as traffic offences.

It is up to the prosecution whether to offer composition.

Composition is not a fine — though the effect is similar — because no court has passed sentence yet. A fine is a form of sentence.

This is a discharge amounting to acquittal and the charge cannot be revived.

AGC decides which of these various options to pursue. There is no appeal against AGC’s decision.

The accused cannot refuse to accept dropping of the charge, except where there is an offer of composition.

If composition is offered, then the accused may refuse to pay, in which case the prosecution will go ahead.

HOW DO YOU GO ABOUT GETTING A CHARGE DROPPED?

The proper procedure is to request that AGC review the case and exercise its discretion to drop the charge.

This is usually done via a Letter of Representations, a formal communication to AGC setting out a request and reasons and evidence in support of that request.

Representations may be sent to AGC through its website or via email. This is usually done by a lawyer engaged by the accused, but it is possible for an accused to write directly.

AGC decides based on its judgement of whether there is any public interest in pursuing the prosecution. The decision-making process is confidential.

There may be information considered that is sensitive or not generally available to the public. AGC is not obliged to disclose its reasons for its decision.

The AGC is not influenced by public demonstrations or publicity stunts.

The exercise of prosecutorial discretion is a serious thing requiring serious consideration.

Given that the power to drop a charge lies entirely with AGC, it is important to ensure that the proper channels are followed and the requests made are reasonable and respectful.

ABOUT THE AUTHOR:

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

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