Deferred prosecution agreements proposed for corporate offences: Shanmugam

Deferred prosecution agreements proposed for corporate offences: Shanmugam

Channel NewsAsia·2018-01-16 12:10

Home Affairs and Law Minister K Shanmugam. (File photo: TODAY)

SINGAPORE: Deferred prosecution agreements (DPAs), a legal tool that US authorities used in the Keppel O&M bribery case, could be introduced here as part of proposed changes to Singapore’s criminal justice system, said Law and Home Affairs Minister K Shanmugam on Monday (Jan 15).

A DPA is a voluntary alternative in which a prosecutor agrees to grant amnesty in exchange for the corporate defendant agreeing to fulfil certain requirements. 

It came up as part of six new suggestions in the second half of 2017, after an initial round of public feedback in July on 50 proposed amendments to the Criminal Procedure Code (CPC) and Evidence Act.

Speaking at a dialogue organised by the Law Society of Singapore, Mr Shanmugam pointed out that DPA regimes were not unusual to US and UK jurisdictions.

Last December, in the wake of a global bribery scandal, Keppel Offshore & Marine entered into a DPA with US authorities, requiring the rig-building unit of local conglomerate Keppel Corp to strengthen internal controls, compliance and anti-corruption programmes.

If implemented in Singapore, terms will have to be approved by the High Court, said Mr Shanmugam. “The High Court will have to look at what’s fair and what’s reasonable and what’s proportionate … and agreements must be published once approved.”

Law Society president Gregory Vijayendran described it as "a very forward-looking approach for Singapore" that "will boost our entire corporate climate".

"It's a very calibrated, very sensible, perhaps overdue innovation welcome on our shores," he said, stressing it was not a case of "going light" on corporations versus individuals.

"The question of what constitutes the mind of the corporation and whose state of mind should be imputed to the corporation - these are difficult questions," Mr Vijayendran explained further. "From the prosecution’s perspective, trying to make that out on a scale of proof that is beyond a reasonable doubt is not easy."

"It might be due to a few individuals within the company itself - and so does the state throw the book at the company and say those individuals represent the mind of the company? Or will it enter a DPA and that becomes a turning point for the company to put its house in order?”

“In the administration of criminal justice, it does make sense that in some cases you would weigh the evidence and see whether or not this is a better avenue to pursue."

BROAD SUPPORT FOR PROPOSALS

Mr Shanmugam earlier said there has been broad support for most of the proposed changes to the CPC and Evidence Act.

Over 30 stakeholders were consulted from sectors such as the general public, civil society organisations, banks, technology companies and the Bar.

In his speech, Mr Shanmugam also revealed fresh details for some of the key proposed amendments, which included enhanced protection for sexual and child abuse victims; video recording of interviews with suspects and witnesses; toughened bail criteria; an expanded community sentencing regime and sterner processes for reopening concluded cases.

For example, to encourage compliance with community sentencing, the courts will be given powers to impose suspended jail sentences together with a community sentence.

Video-recording will be implemented in phases and be made mandatory for a scheduled list of offences  - which, at first instance, will comprise rape. More offences will be added in future phases.

A video recording can capture subtleties not conveyed in writing, such as the demeanour of the suspect or witness. For vulnerable victims, the recording can be used in place of oral testimonies in court, to minimise trauma to them.

The defence counsel will be given a transcript of the videos but no actual copies will be handed over, to mitigate the risk of recordings being circulated on the Internet or black market.

In sexual offence or child abuse cases, unless permitted by the court, there will be a general prohibition against asking complainants unrelated questions about their sexual history and behaviour. This aims to reduce the stress they face during the criminal process.

“There is some evidence of under-reporting ... not infrequently, the offender is someone the victim is fearful of,” said Mr Shanmugam. “We want to change that psychology and we want to create the conditions that make it safe for the victim to report and be protected and to know they’re not going to face an unreasonable ordeal.”

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