Why are we pretending?

I don’t recall a single policy so vexing that led me to pen down my kneejerk reactions and emotions, but alas we are here. The recently-announced Sentence for Enhanced Public Protection (SEPP), see CNA’s coverage, for example.

The pretext is that “[T]he SEPP will be limited to ‘extremely dangerous offenders’ convicted of serious violent or sexual crimes, and who pose a substantial risk of causing serious physical or sexual harm to others”. However, this is potentially dangerous as a matter of principles in my view. The basis for this policy is fortunately documented helpfully, at least in part, prior to a 2021 public consultation by the Ministry of Home Affairs. REACH provides further detailed motivation, which provides the fundamental basis, i.e. raison d’etre for SEPP (called the EDPP during the public consultation). To this end, the SEPP is part of a pair of proposals introducing the concept of detention for public protection. They are, respectively, the Detention for Public Protection and Enhanced Detention for Public Protection. The former is a consolidation of the two regimes Corrective Training (CT) and Preventive Detention (PD) into a single sentencing regime, focused on punishing repeat offenders. The second is the proposal under which the SEPP is a solution. I focus on the second prong.

Motivation

According to the Ministry,

more should be done to protect the public from dangerous offenders who might continue to pose a serious public safety risk upon their release from prison. There is a need to enhance our levers to ensure that an offender’s risk to public safety is duly assessed before release, and that the offender’s re-integration into the community is closely supervised and assessed, before he is permanently released without supervision.

This is presented as a single bullet-point but should really be many. I divide them, firstly by sentences, then by significant clauses. In doing so, I want to call attention to the undermining of principles.

Where motivation arises

Significant clauses My interpretation
[M]ore should be done There is a need for further action
to protect the public For the sake of the public’s safety
from dangerous offenders From criminals who were sentenced for severe crimes (defined later)
who might continue who are believed to,
to pose a serious public safety risk or demonstrate a propensity to cause grave harm to public safety
upon their release from prison even after having completed their sentence.

1. Why such a motivation arises

Firstly, there is motivation to implement the SEPP. The ministry cites 3 cases of recalcitrant offenders sentenced to CT and PD (to mean they reoffend after these regimes). I reproduce them verbatim here.

S/N Case
(a) In June 2020, an offender was sentenced to the maximum 20 years’ PD for sexually assaulting his 12-year-old stepdaughter, less than 2 years after he was released from prison for raping his 11-year-old niece (for which he was sentenced to 24 years’ imprisonment and 24 strokes of the cane). The offender was found to have a high risk of re-offending and had a clear pattern of sexual deviation.
(b) In September 2015, an offender was sentenced to 5 years’ CT and 12 strokes of the cane for committing numerous offences involving harassment on behalf of licensed moneylenders, failing to report for urine tests, and repeat consumption of a specified drug. Numerous other charges were taken into consideration in the sentencing. He had a total of 173 antecedents involving various offences, such as theft and drug consumption.
(c) In November 2018, a burglar was sentenced to 7 years’ PD for committing housebreaking. He committed this offence less than 1 month after his release from prison, for a property-related offence. He had a total of 19 property-related antecedents, and had previously undergone CT for housebreaking.

In summary, these three cases show severe instances of reoffending despite the sentencing regimes together with lengthy sentences or traced antecedants. I am minded, however, that these are potentially cherrypicked instances highlighting the extent of recalcitrant offenders despite enhanced sentencing regimes. Without their relevance to overall reoffending rates, these individual instances are challenging to accord weight to if one were to seek the general landscape of reoffences. It would then be tempting to argue, perhaps, that for each recalcitrant offender, there are many other offenders who were minded to not reoffend. Yet, it is likely the case that these reoffences overshadow the non-reoffending population. There are thus two branches to the concerns of reoffending:

  1. That there are habitual reoffenders,
  2. or, that there is a repeat of serious crimes.

The SEPP holds for habitual reoffenders of serious crimes. Here, I use “habitual” to mean an offender predisposed or otherwise with a great propensity of committing a serious crime (to be defined).

2. What the initial sentencing of SEPP looks like, and its judicial process

Next, the underlying reason is the consideration of public safety against the commission of severe crimes, referred to as the Qualifying Offences. The two categories are hurt offences committed with notable violence, or with disregard to life, or against vulnerable persons, or in a position of trust (or any combination); and sexual offences. In other words, serious physical or sexual harm.

Further to this, the criteria for the SEPP is an evaluative one, differentiated according to whether the offender was a first-time offender or a repeat offender. For a first-time offender, the necessity of the SEPP is evaluated through due legal process supported by evaluations from the Institute of Mental Health and the Singapore Prison Services. This process is a stringent one as both institutions need to provide independent reports that concur vis-a-vis the high risk of aforementioned harm, although the sitting court may decide on the SEPP even if these reports do not agree on the presence of said high risk when seen in context of the full case. To my mind, this is a strict judicial process with due legal rights, befitting of the judiciary.

For a repeat offender, it suffices that an offender was previously convicted of a Qualifying Offence for him to be said to have propensity to reoffend. This is starkly distinct from the stringency as afforded to a first-time offender. However I am minded of the argument that the offender would have previously been afforded a strict review of his propensity to reoffend as a first-offender, and having completed his sentence, again recommits another Qualifying Offense. I see no serious issue with this.

Overall, the judiciary maintains the discretion to not impose the SEPP if the sentence is gravely disproportionate (though not simply disproportionate), or that on a preponderence of evidence, that a lesser sentence suffices. This could hardly be challenged.

3. Deterrence is the primary sentencing consideration

The severity of the Qualifying Offences almost surely necessitates that the primary sentencing consideration is of deterrence. As in the motivation of the SEPP, I am minded that the regime is targetted at habitual reoffenders of serious crimes. On the other hand, the SEPP arises, if one were to draw the tempting adverse inference, because a niche subset of offenders are not susceptible to rehabilitation, to mean, that rehabilitation is ineffective. In other words, the Ministry says that we need enhanced deterrence.

Yet, it is unclear the extent to which rehabilitation is effective. Indeed, even for petty crimes such as theft, as in Case (b) above where an offender was traced for some 170 offences ranging from theft to drug offences. It is just as compelling to say that rehabilitation is not implemented in a manner as effective as is necessary for lesser crimes, to name one, like petty theft. I would instead draw the negative inference against our implementation of rehabilitation regimes: that they are not as idealistic nor as effective as they are said to be.

In this vein, one might argue, in a similar way as I’ve done in a previous subsection, that for every one reoffender, there are many more who do not reoffend. In 2022, it was reported that the recidivism rate was 20.2%, and it is often touted that Singapore has one of the world lowest recidivism rates. However, one should be aware that these rates differ globally. It is empirically true that western i.e. Americas and the European nations pose higher recidivism rates than Asian nations. Comparing to Asian nations, for instance, Japan averages about 15%, and Phillipines averages about 18% according to various studies. I could very well claim that Singapore’s recidivism rates are still above some Asian neighbours, perhaps giving rise to doubts in our rehabilitation efforts.

However, I must emphasise that I am minded of the relative unscientific discussion here. This is because deterrence is severely contextual and any qualitatitve discussion of it must deviate from the appeal to relying on numbers. Similarly, any rebuttal of the over-reliance on recidivism rates would likely turn to the unscientific nature of such a guidance, to wit, by giving rise to a secondary factor that results in higher recidivism rates in Singapore, as I have done. To this end, I remain unconvinced that enhanced deterrence is a necessity insofar as enhanced rehabilitation is not a necessity.

4. Evaluating the propensity for reoffending post-sentence

From the article I linked at the top,

these offenders may be released “on licence” after serving a minimum jail term – meaning that they would have to comply with certain conditions, such as e-tagging – and only if the Minister for Home Affairs assesses that they no longer pose a threat to the public.

This part is in essence a Conditional Release Order that is issued by the Minister instead of the Commissioner of Police. It is currently unclear what an evaluation entails, and so is nebulous at best.

However, if they are not found suitable to be released on licence, they can be detained for as long as required – up to life – for public safety. This will be reviewed yearly.

Yet, I am minded that such a review is promising as an evaluative approach rewards the offender for having sufficiently rehabilitated and demonstrates such a promise to do so, to the extent that he is fit for reintegration into society. Perhaps this is a carrot and the stick issue? Such a law motivates the inmate to be prepared for evaluation nearing the end of his mandatory sentence. However, I argue below that this is not the case: this evaluation crosses the threshold of punitive action as opposed to determination of rehabilitation.

Singapore’s parallel to the SEPP

To my mind, this is a parallel of detention under The President’s Pleasure, which is in effect an indefinite detention but without the implementation of a license. That is, the duration of the sentence is wholly at the purview of The President, i.e. the Executive, rather than the judge. This handing over of punitive power from the judiciary to the Executive has been ruled unconstitutional in Hong Kong, for instance. For context, The President’s Pleasure is a sentencing option (or practice) applicable to offenders below the age of 18 (at the time of offence) who committed capital crimes under the former Section 213 of the Criminal Procedure Code. It is also used for offenders of unsound mind at the time of offence, and so were acquitted of any such crimes but were instead detained under The President’s Pleasure until they were deemed mentally fit for community under the original Section 251 of the Criminal Procedure Code.

However, it is worthwhile to point to what I think is a glaring merit of the SEPP over detention under The President’s Pleasure. For one, The President’s Pleasure does not first impose a mandatory sentence, even though empirically the duration of detention is typically between 10 to 20 years. Meanwhile, the SEPP has a mandatory sentence of between 5 to 20 years as imposed by the judge. Secondly, detention under The President’s Pleasure leaves the length of the sentence to the Executive. Meanwhile, the SEPP is bifurcated in the sense that the Executive’s review is a further lengthening of the initial mandatory sentence meted out by the judiciary.

It bears on me to refer to the oft-cited Lord Diplock’s opinion (of the Privy Council) in what relates to His Majesty’s Pleasure, which is the predecessor of Singapore’s The President’s Pleasure: that any such determination must be consistent with the separation of powers as a matter of principles, in the field of criminal punishment. Currently, the SEPP is a close mirror of the His Majesty’s Pleasure as it similarly includes two prongs to the sentence: a sentence as decreed by the judge, and then further determination by the Executive. To wit, the judge is minded of the punitive and deterrence effects of the sentence while the Detention Review Boards (i.e. Singapore’s Minister of Home Affairs and UK’s Secretary of State) consider the offender’s suitability of reintegration.

In the exercise of its legislative power, Parliament may, if it thinks fit, prescribe a fixed punishment to be inflicted on all offenders found guilty of the defined offence - as, for example, capital punishment for the crime of murder. Or it may prescribe a range of punishments … What parliament cannot do, consistently with the separation of powers, is to transfer from the judiciary to any executive body … a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders.

In this respect, the SEPP obeys the separation of powers in a manner better fitting than the former detention under The President’s Pleasure. Nonetheless, the administrative action in determining the length of extension under the SEPP is a grey area in which Executive and Judiciary functions overlap. Thus, the sovereign body assigned to oversee such an extension must act in a judicial manner, that is with judicial fairness, and so the detachment from external factors that come with the status quo.

The in-built leniency is given as a prerogative of mercy, in consideration of the offender’s age, and so the punitive component of the sentence must be balanced with the young offender’s future welfare: indeed the period of detention is indeterminate, but is in a manner so that his future is not deprived.

Yet, the SEPP fulfills a purpose different from His Majesty’s Pleasure. With respect, the United Kingdom’s term for the “judge sentence” is a “tariff period” rather than a “minimum sentence”. In ex parte Venables, the House of Lords were minded to consider the effect of such a tariff period:

In a discretionary case, the decision on release is based purely on whether the offender continues to be a risk to the public. The presumption is that once the period that is appropriate to punishment has passed, the prisoner should be released if it is safe to do so.

The exercise of discretion under His Majesty’s Pleasure is thus a sole function of risk. This is distinct from Singapore’s demonstrably holistic evaluation of an inmate prior to release, especially in that it considers an inmate’s performance and, as explained previously, other broader terms such as the likelihood and propensity of reoffence, rather than a mere risk assessment. Nonetheless, I find that His Majesty’s Pleasure is a workable guide. I now turn to its legislative history.

The essence of His Majesty’s Pleasure

Firstly, His Majesty’s Pleasure is aimed at juvenile offenders of serious crimes, and in view that they are not to be sentenced to life imprisonment (with or without parole), are instead sentenced to what is termed a discretionary life imprisonment under the discretion of His Majesty (the Secretary of State). This discretionary life sentence is different from a mandatory life sentence i.e. the usual life imprisonment decreed by court. Under a mandatory sentence, it is, as the judge rules, necessary in light of the circumstances of the offence viewed in context of, for instance, whether the offender may be sufficiently rehabilitated through support such as familial support, as well as whether the offender has demonstrated a propensity of rehabilitation, such as through a demonstration of remorse. That is, the consideration of circumstances is complete at the sentencing stage. Such release is then under the discretion of the Executive, and so is not unconstitutional: indeed the judiciary decrees the punitive effect of the sentence, which is the sentence of duration to the effect of the offender’s natural life, until the offender is eligible for parole, and is granted such based on ameliorating circumstances after a legislative-defined period. Thus, the determination of the sentence is already lawful through an application of the law by the judge, so there is no need for further action.

The SEPP is to the effect of a “double punishment”

The key distinction here is the targetted application to juvenile offenders. To me, it is the youthfulness of the offender, i.e. under the age of 18 at the time of offence, that warrants a distinct judicial action. To this end, I cannot agree with the application of the essence of His Majesty’s Pleasure to adult commission of the tabled offences, which is the SEPP. This is because the SEPP is not subject to consideration of an offender’s youthfulness, and are instead focused on punishment and deterrence as the primary sentencing considerations. Clearly the threshold for punitive and deterrence effects is crossed for offences as serious as those tabled.

Now, the SEPP bifurcates the sentence an inmate serves into two parts: the “judge sentence” and the “ministry sentence”. Firstly, the “judge sentence” is of a punitive effect as previously mentioned. Then, the general principle that the “sentence should fit the crime”, that is, the proportionality principle, must be upheld. The sentencing judge would have carefully evaluated the context of the case and exercised his/her discretion in applying the mandatory “judge sentence” of between 5 to 20 years. Given such a wide range, it is apposite to say that the maximum “judge sentence” is only necessary in the worst circumstances. In light of the punitive effects, the judge would have already factored in suitable uplifts in arriving at the “judge punishment”.

I turn to the “ministry sentence”, which is an extension of the “judge sentence”. I argue that this extension is distinct from the Executive’s determination under His Majesty’s Pleasure. Firstly, the “judge sentence” of 5 to 20 years can be said to be manifestly inadequate in light of Case (a) above, and many others, for instance, the recent imposition of a 29.5 years jail sentence and the statutory maximum of 24 strokes of the cane for aggravated sexual assault. This means that to achieve proportionality, the “judge sentence” would first be set to the proposed statutory maximum of 20 years, and then the Minister of Home Affairs would deny awarding a license of release for a further 9.5 years. Thus, the effect of the “ministry sentence” cannot be said to be one of mere evaluation. Indeed, if we were to achieve proportionality, then it is necessary that the “ministry sentence” be one of punitive effect, even if to some degree. It is difficult to accept the imposition of “double punishment” for the same charge.

Moreover, this determination by the ministry is not one accorded due legal process, even if the offender may apply for a leave for judicial review to contest his further detention in the same vein as an application for habeas corpus, it is dangerous to allow the Executive to determine a punitive component if we were to observe the separation of powers, as Lord Diplock plainly explains above, and I quote so again:

What parliament cannot do, consistently with the separation of powers, is to transfer from the judiciary to any executive body … a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders.

By allowing the Executive to determine a further punitive component in the medium of an extension of sentence, we invariably allow the Executive to take on the role of the judiciary, whose role is sentencing any offender in a judicially fair and robust way. No matter how the Minister reassures me that the further sentence imposed will be “fair”, even if this further sentence is imposed in consultation with such effect of a parole board and with legal advice, it is difficult to agree that this fairness is equivocal to the judicial fairness currently afforded to all inmates despite committing the tabled offences.

As it stands, an inmate who has completed his sentence (currently the “judge sentence”) would have paid for his crime, but the SEPP defies the longstanding proportionality principle in view of its “double punishment” concept. Moreover, I am perplexed by whether such a reviewing panel would be assuaded by external forces, say, the public opinion (which I believe is a basis of the SEPP), and the attitude of the sitting Minister of Home Affairs which would influence the propensity to permit releases after the completion of the “judge sentence”. This bifurcation of punishment simply cannot stand.