New public defender’s office proposed to offer criminal legal aid to more needy Singaporeans

SINGAPORE — A new fully Government-funded public defender’s office may be set up this year, as the Ministry of Law (MinLaw) will table a Bill in Parliament to establish such an office to provide legal aid to more vulnerable Singaporeans facing non-capital criminal charges.

If the Public Defender's Bill is passed, the public defender's office will look to begin operations by the end of this year, MinLaw said in a news release on Monday (April 4).

The announcement comes six months after Law Minister K Shanmugam first told Parliament that the Government was considering creating a public defender's office.

Mr Shanmugam delivered a ministerial statement in Parliament on the issue on Monday, where he gave more details about the proposed office and stressed that the Government will put measures in place to prevent abuse and ensure aid is given only to deserving cases.

MinLaw said it will also seek to expand criminal legal aid coverage under the existing Criminal Legal Aid Scheme (Clas), which will continue operating separately, as well as under the public defender’s office.

This will be through raising the income limit so that more vulnerable Singaporeans can qualify for help and allowing more offences to be covered.

During its review, MinLaw also consulted and took in feedback from the Law Society of Singapore (LawSoc) as well as the legal fraternity.

More details about the Bill will be released in due course.

SUGGESTED TERMS OF THE PUBLIC DEFENDER'S OFFICE

• The public defender's office will be fully funded by the Government and established as a department under MinLaw
• It will seek to help those facing non-capital criminal charges but are unable to engage a lawyer due to limited means
• It will be headed by a Chief Public Defender and staffed by full-time lawyers
• It will adopt a “hybrid model”, where these lawyers — including fresh graduates, younger lawyers, mid-career hires and Legal Service Officers — take on criminal legal aid cases as public defenders
• They will then outsource some cases to a panel of qualified lawyers at a later date
• Clas, which was started by LawSoc and senior lawyers in 1985, will continue dealing with some criminal cases
• Mr Shanmugam said the Government will continue to provide some co-funding to Clas
• Other details will also have to be worked out, such as which cases Clas and the public defender’s office will handle respectively

EXPANSION OF COVERAGE

• The income limit for Clas, which currently covers up to the 25th percentile of resident households, will be increased to cover households up to the 35th percentile
• This will be done by raising the monthly per capita household income cut-off from S$950 to S$1,500
• The scope of coverage will also be expanded to all types of offences
• The exceptions are regulatory ones like traffic summonses and minor departmental charges, which include littering and parking offences, and those under nine Acts — gambling and betting; organised and syndicated crime; and terrorism — whose primary purpose is to deter specific behaviours
• Mr Shanmugam said that with these changes, the total caseload for criminal legal aid could increase by another 50 per cent, or even higher if the take-up rate also increases
• About 60 per cent of newly eligible accused persons would likely not have hired a private lawyer, which means extending coverage will not significantly affect lawyers' paid work, Mr Shanmugam added
• The public defender’s office will also have the discretion to exclude cases like those with established sentencing frameworks, and if the Chief Public Defender thinks that representation may not make a material difference to the case’s outcome
• A MinLaw spokesperson said that the average yearly percentage of Clas applications that were approved from financial years 2018 to 2021 was 51.1 per cent

HOW THE PUBLIC DEFENDER'S OFFICE MODEL WAS DERIVED

In deciding to adopt a hybrid model of criminal legal aid, Mr Shanmugam told the House that the Government thought about three key issues:

• The need to try to minimise abuse of the system
• Managing costs to ensure fiscal sustainability
• Maintaining lawyers’ pro bono spirit

MinLaw said it had studied the approaches adopted by 11 overseas jurisdictions including Hong Kong, South Korea, Japan, two states in Australia, the United Kingdom and New Zealand.

Nine of these jurisdictions have a public defender scheme in place, while 10 of them are fully funded by their governments.

Mr Shanmugam noted that a "major concern" was escalating costs, with reasons being a lack of a robust means and merits assessment framework.

There have also been abuses of the system in other countries such as private lawyers, to whom cases were outsourced, overbilling the State for their own benefit.

For example, a lawyer in Ontario, Canada billed around S$160,000 between 2013 and 2016 for "travel expenses" when his office was actually close to the courts, he said.

Other abuses include unmeritorious applicants who took advantage of legal aid, such as asset-rich or wealthy accused persons who found ways to meet the eligibility criteria.

There were also cases where applicants fulfilled the means and merits tests but were perceived to be morally undeserving of aid, such as war criminal Dragan Vasiljkovic in Australia who incurred around S$950,000 in costs to defend him, Mr Shanmugam said.

This category of abuse is "more challenging to address", while the Government can have systems and frameworks to try to detect and deter abuses under the other categories, he added.

Mr Shanmugam said that the Government has to be careful about the cases it funds with taxpayers' money.

"In other jurisdictions, expansions in coverage contributed to higher costs. We will have to be very careful to try and not strain the public purse," he noted.

“We intend to put in place measures to try and ensure that aid is given only to deserving cases, and try and ensure that the costs of criminal legal aid remain sustainable.”

QUESTIONS FROM MPS

Several Members of Parliament, including Leader of the Opposition Pritam Singh, asked about the funding model of the public defender’s office and the types of cases that will be excluded under its purview.

On Mr Singh’s questions on how much funding it will require and how many staff it will hire, Mr Shanmugam said that it was a matter of detail and that the law ministry is discussing it with the Minister of Finance.

“We have some idea but I prefer to deal with it at the Bill stage,” added Mr Shanmugam, who added that the office will be funded primarily out of MinLaw’s budget.

Mr Singh and fellow Workers' Party MP Sylvia Lim asked about how the public defender’s office and Clas will decide which cases to take respectively.

Mr Shanmugam responded that there may be accused persons who do not qualify under the public defender’s office’s means test, but Clas may feel it is good to cover them. “These are things that need to be discussed in greater detail with LawSoc,” he added.

He further clarified that the public defender’s office will also handle appeals.

Ms Lim also asked if drink-driving offences will be covered, given that certain offences were excluded "because there is some moral reprehensibility about them".

Mr Shanmugam said he would prefer to hold his comments on this until the Government has "settled on the list of legislation".

TIMELINE OF SINGAPORE’S CRIMINAL LEGAL AID SYSTEM

1985: LawSoc and senior lawyers, including the late Harry Elias, set up Clas to provide legal aid to those facing non-capital charges. It was privately funded through LawSoc and goodwill donations

2013: MinLaw announces the Government’s intention to directly fund Clas. It also announces the formation of a steering committee to oversee the use of government funds provided to the Law Society Pro Bono Services for Clas

2015: The Government starts funding about 75 per cent of Clas’ operating costs, while Clas funds the remaining costs through private donations. Clas also begins covering more criminal offences, helping accused persons who intend to plead guilty, and implementing an enhanced means test to allow more applicants to qualify for criminal legal aid

2020: The Government begins a review of the enhanced Clas to assess if there is a need to change Singapore’s criminal legal aid model and fully fund legal aid

November 2020: Mr Shanmugam gives a ministerial statement on the Parti Liyani case, where he first says the Government is considering creating a public defender’s office