Should accused persons in Singapore be named before conviction? Lawyers, media academics have split views

• The Ministry of Law said it recognises the pros and cons of prioritising the principle of open justice and said this is kept “under review from time to time”
• While the legal principle of an accused person’s presumption of innocence exists, the legal fraternity says it is not appreciated by the public
• The naming of accused persons by the media before they have been convicted unfairly tarnishes their reputation, say lawyers
• Media academics say it is the duty of news organisations to report in as much detail as possible

SINGAPORE — Amid an ongoing debate about whether the identity of accused persons should be protected prior to conviction, the Ministry of Law (MinLaw) said in response to queries that it recognises the pros and cons of prioritising the principle of open justice — whereby those accused are publicly tried — and it is a matter being kept “under review from time to time”.

The legal fraternity and media academics are split over the issue, which sparked debate among readers, after TODAY ran an article that touched on the challenges faced by individuals who had been charged in court but were eventually found innocent.

The April 17 article was part of TODAY’s weekly Big Read series.

Several comments by readers on the article raised concerns about how having an individual’s name tied to a crime report would affect their lives.

Indeed, media publications — including TODAY — often receive requests from victims, or even offenders themselves, to have their names removed from news reports on court proceedings. These are considered on a case-by-case basis. TODAY follows established court procedures and, in general, also adheres to the principle of open justice.

While criminal lawyers TODAY spoke to felt that news organisations should exercise some form of self-censorship in this regard, media experts disagreed and said the press has a role to play by being the representatives of the public at an open court.

This means that it has to report the facts that it receives, including the names of any accused individuals regardless of whether they have been convicted.

MinLaw said Singapore’s approach is similar to that of the United Kingdom and it “prioritises the principle of open justice”.

“The courts do not have a general power to grant accused persons anonymity in proceedings solely on the grounds of protecting their reputations. This means that accused persons are publicly tried, and verdicts of the court are publicly announced,” a MinLaw spokesperson told TODAY in an email response on Saturday (April 24).

“The Ministry of Law recognises that there are pros and cons to this approach, and this is something we will keep under review from time to time.”

PRESUMPTION OF INNOCENCE

Mr Chooi Jing Yen, a partner at law firm Eugene Thuraisingam LLP, said the rationale behind having an open court is to show the transparency of the criminal justice system.

“The people also have a right to know what the accusations were, and the responses to them,” he said. “To some extent, it also allows them to form their own views to certain acts, though the ultimate decision lies with the judge.”

Another hallmark of the judicial system is the presumption of innocence, a legal principle that any person accused of a crime is innocent until proven guilty.

“That's why the courts have generally not objected to letting an accused person's identity be known throughout the proceedings,” said Mr Chooi.

MinLaw’s spokesperson said the media is generally free to report ongoing cases, subject to general laws on contempt of court and defamation.

There are exceptions to the rule. The courts are allowed to protect the identity of the accused if it leads to the identification of a victim of sexual or child abuse, or if the accused is under the age of 18.

In such situations, the courts will impose a gag order which prevents the publishing of names, addresses, photographs of the accused in question, or any other information or evidence that are likely to lead to their identification.

THE STIGMA OF BEING NAMED

If the presumption of innocence acts as it should, then having the names publicly known should not be an issue, said Associate Professor Chen Siyuan of Singapore Management University’s Yong Pung How School of Law.

“But society does not always work that way,” said Assoc Prof Chen, who specialises in criminal law.

Invictus Law Corporation director Josephus Tan said that society’s “low legal literacy rate” does not help. “As such, any accused who is named in the media would inherently be shamed at the get-go.”

In one example cited in TODAY’s Big Read, a doctor who was accused of molestation lost his job after the owners of the clinic he worked at told him to leave “to preserve their reputation” after he was arrested and charged.

He was eventually acquitted last month after a judge found several aspects of his accuser’s evidence to be inconsistent and unconvincing.

Mr Sunil Sudheesan, head of the criminal department at law firm Quahe Woo & Palmer, said there is a stigma of being named in the press as an accused person.

“Many people think that just because somebody is charged, they are guilty already,” said Mr Sunil.

Furthermore, the internet does not forget, he said. “The fact that someone has been charged will be there, but the fact that they’ve been acquitted down the road may not.”

In cases of acquittals, Professor Kumaralingam Amirthalingam, who lectures on criminal law at the National University of Singapore, said the media owes it to the accused person to carry adequate coverage after the acquittal to clear their name in public.

Nevertheless, accused persons can be acquitted for reasons such as technicalities, a lack of evidence or unreliable testimony or evidence. The prosecution also has to prove all charges beyond a reasonable doubt.

Still, the lawyers largely agreed that there is public interest in crime stories as they serve to inform that an offence has been committed, or act as a deterrent to would-be criminals to show that they cannot escape from the long arm of the law.

But public interest can be fulfilled without the need to mention names, at least until conviction, said Mr Sunil.

He added that accused persons and their family also have a right to their privacy, and cited instances of how some of his clients were harassed when strangers waited outside their homes.

As for Mr Tan, he said that knowing an accused person’s name serves no benefit beyond “creating more avenues for the public to gossip or speculate”.

ROLE OF THE MEDIA

Communication professor Ang Peng Hwa from Nanyang Technological University disagreed with the lawyers.

“The way to look at it is that the media takes the place of the public who cannot go to court… because most of us have regular jobs,” he said.

“So we send a representative over… a reporter, who goes on to report on behalf of the public that is interested to know how justice has been administered.”

National University of Singapore’s Associate Professor Bertha Henson added it is the media’s duty to find out as much details as possible.

“I don't think the onus should be on the media to do the gagging. It is so antithetical to its role,” said Assoc Prof Henson, who teaches media writing.

On the matter of whether the media should intentionally withhold names until someone is convicted, Prof Ang said it opens another can of worms.

He reasoned that if those who commit relatively minor crimes are not named, the same standard would apply to those who break the law in a major way — like a person of stature who accepts bribes.

On a practical level, Assoc Prof Henson said it is also a matter of consistency.

“Why do you decide to name one and not the other? You can’t come up with a coherent editorial policy that fits all cases. You will be subject to questioning and accused of bias or prejudice, which only tarnishes your integrity,” she said.

Protecting an accused person’s identity also goes against the principle of open justice, said Mr Chooi, and it does not help with the public’s understanding of the presumption of innocence.

“You're encouraging the mentality that the accused is guilty because now you're hiding the name,” he said.

Similarly, it will not be beneficial for the authorities to enact any legislation to suppress or withhold names until an accused person is convicted, said Prof Amirthalingam of NUS.

“That would be difficult because that means that the public can’t attend hearings, or they would have to be gagged from talking about the hearings, which would be unacceptable,” he said.

“Hearings must be open to the public to ensure transparency and confidence that justice is being served.”

SHOULD VICTIMS BE NAMED?

When asked if victims of sexual assault should be identified to discourage false accusations, the general consensus was no.

As it is, the legal professionals said there is difficulty getting victims of sexual offences to come forward to report crimes committed against them. Allowing them to remain anonymous is one way to help them come forward.

If the accusations are untrue, Mr Sunil said the public ought to know the names of the accusers in case others have also fallen victim to their unsubstantiated allegations.

While acquitted persons may feel that their reputation has been tarnished, Prof Amirthalingam said there is still legal recourse and, in appropriate cases, action can be taken against their accusers, such as suing them for damages or lodging a police report for a false complaint.

Ultimately, both the criminal justice system and the media have their respective roles to play, he said.

Whatever the case, Prof Amirthalingam said: “It is vital that the public understand and respect the presumption of innocence, which lies at the core of our criminal justice system.”