Indefinite jail time for dangerous convicts: Lawyers call for safeguards against excessive detention

SINGAPORE — Some legal experts are calling for adequate safeguards should dangerous offenders of serious hurt and sex crimes be detained beyond their jail sentence.

To avoid cases where such convicts are being imprisoned for an excessive period or even potentially for life, any law pertaining to this should provide mechanisms for detention orders to be challenged, they told TODAY.

Law professor Eugene Tan from Singapore Management University (SMU) said: “Parliament will have to be scrupulous and exercise utmost caution in passing such a proposed law.”

On Tuesday (April 5), Law and Home Affairs Minister K Shanmugam told Parliament that the Government was studying proposals to have dangerous offenders detained until they are assessed to “no longer pose a threat” to the public, instead of being automatically released after serving their jail term.

Under this proposal, first-time and repeat offenders convicted of very serious hurt and sexual crimes will have to finish serving a minimum jail term of five to 20 years and then be assessed by the authorities as to whether they are fit for release.

If deemed unfit, they will continue to be detained.

Assoc Prof Tan from SMU’s Yong Pung How School of Law, who used to be a Nominated Member of Parliament, said that such a law will have to be used sparingly and should have safeguards such as appeals and judicial reviews.

One way the detention could work would be to have an inmate meet a set of conditions showing that he has been rehabilitated and no longer poses a threat to society before he can be released from prison.

“However, any further detention will have to be decided by a court of law,” Assoc Prof Tan said. “It should not be enough to have the sole assessment of the prison authorities for further detention.”

Criminal lawyers Chua Hock Lu and Ashvin Hariharan drew comparisons of such a law to the Criminal Law (Temporary Provisions) Act and the Internal Security Act, both of which allow detention without trial of people believed to be associated with serious crimes.

Under the Criminal Law (Temporary Provisions) Act, every detention order must be reviewed by an independent committee chaired by a sitting Supreme Court judge, and for the Internal Security Act, an independent board chaired by a sitting or former Supreme Court judge.

“However, there may be potential constitutional issues arising from this, as we have seen in (these) cases,” the two lawyers from Kalidass Law Corporation said in an emailed reply, referring to issues relating to a person's constitutional rights.

They added that a potential issue may arise if these offenders are not allowed to appeal extended detention orders before the courts.

This is because a judicial review to look into such orders requires an offender to meet high thresholds to overturn a decision, namely, that an order was given based on bad faith, illegality, irrationality and procedural impropriety. 

Lawyer Diana Ngiam hopes that the law will clearly spell out the assessment criteria for an offender to “no longer pose a threat” to society, given that this could involve some subjectivity.

She raised the example of a convict who has no family members, friends or guardians.

“The offender may therefore, by virtue of the offender’s absence of a support network, be deemed to still pose a threat to the public if released, which may be regarded as overly harsh,” the associate director of Quahe Woo and Palmer law firm said.

MIXED RESULTS FROM THE UK'S EXPERIENCE 

Although the new sentencing option would be a novel approach for Singapore, a number of countries around the world have enacted similar regimes that allow for indefinite jail sentences.

In the United Kingdom, the imprisonment for public protection (IPP) sentence came into force in 2005, allowing serious offenders to be sentenced to a minimum jail term and be released only when a parole board is satisfied that it is no longer necessary that the offender be confined for the public’s protection.

The scheme, though, was abolished in 2012 after it was used far more widely than intended, with more than 800 such sentences handed out a year. 

The Ministry of Justice in the UK said in a factsheet on its website: “IPPs have proved difficult to understand and leave victims and their families uncertain about how and when an offender will be released. 

“IPPs lead to inconsistent sentencing. They have been given to some offenders, while others who have committed similar crimes have served fixed sentences.”

Mr Shanmugam on Tuesday described the UK’s experience with this approach as yielding “very mixed results”, but added that he believed Singapore can make it work.

Lawyer Gino Hardial Singh, founder of Abbots Chambers law firm, said that he understands the need for some offenders to undergo an extended detention before they are ready to return to society. However, the uncertainty over their release date may result in offenders becoming reluctant to take up rehabilitation.

“Additionally, the obscurity of their release may also cause family members to be distraught,” he added.

Criminal lawyer Josephus Tan of Invictus Law Corporation said that if the proposal is tabled in Parliament, Members of Parliament must assess the need for such a law to protect the public based on data on recidivism rates in Singapore. Recidivism in the context here refers to the proportion of ex-convicts being imprisoned again within two years of release. 

“My general take on this topic is that a person shouldn’t be punished more than what had been imposed by the court of law.

“Crime prevention is good but it should not be taken to extreme as to affect the fundamental right of an ex-convict,” Mr Tan said.

“Being tough on crime shouldn’t be a soundbite but based on actual statistics on the crimes we seek to prevent.”