Bill Passed to Amend Criminal Procedure Code by Introducing Sentence for Enhanced Public Protection, Modifying Criminal Case Disclosure Regime

12 January 2024

On 5 February 2024, the Criminal Procedure (Miscellaneous Amendments) Bill (“Bill“) was passed in Parliament to introduce several significant amendments to the Criminal Procedure Code (“CPC“). Once it enters into force, the Criminal Procedure (Miscellaneous Amendments) Act (“Act“) will, among other matters:

(a) introduce the Sentence for Enhanced Public Protection (“SEPP“);

(b) amend the disclosure regime in criminal proceedings;

(d) require accused persons to undergo forensic medical examinations (“FME“).

Introduction of the SEPP

Aimed at enhancing public protection and avoiding the release of offenders who continue to pose a real danger to society, the SEPP is a new type of sentence that can be imposed by the courts under section 36 of the Act. It applies where the offender:

(a) has been convicted of an offence set out in the Seventh Schedule of the CPC (“relevant offence“), such as culpable homicide, attempted murder, rape, and sexual penetration of minors;

(b) poses a substantial threat of causing serious physical or sexual harm to any other person(s), or has been convicted of two or more relevant offences since reaching 16 years of age and received specified sentences;

was convicted on or after the date of commencement of section 36.

Where the SEPP is applicable:

(a) The court retains the discretion not to impose the SEPP if it has special reasons not to do so, such as if the SEPP would be gravely disproportionate in all the circumstances, or a lesser sentence will adequately protect the public.

(b) If the SEPP is imposed, there will be a minimum of five to 20 years’ imprisonment. The usual remission period or early release will not be applicable.

(c) The offender will only be released if assessed by the Minister of Home Affairs (“Minister“) to no longer pose a threat to the public, instead of being automatically released. The Minister will be advised by a Detention Review Board, and his decision may be subject to judicial review.

If the offender is released, he may be placed on licence and subject to conditions such as mandatory counselling or electronic monitoring until such time it is assessed that the conditions may be removed.
If found unsuitable for release, the offender may continue to be detained up to life, subject to annual reviews.

Amending the Criminal Case Disclosure (“CCD“) regime

The CCD regime was introduced in 2010, and has since seen a common law disclosure regime developed in parallel through case law. Two key aspects are:

(a) The Kadar disclosure obligations (“KDO“), where the prosecution must disclose unused material that tends to undermine the prosecution’s case or strengthen the defence’s case; and

(b) The Additional Disclosure Obligations (“ADO“), where the prosecution must disclose statements of material witnesses who are not called as Prosecution witnesses.

The Bill will codify, clarify or modify aspects of the common law disclosure obligations, such as the scope of the KDO and ADO, while aligning the timing of the ADO with the statutory disclosure regime. Aspects of the statutory regime will also be finetuned, including requiring compulsory participation in the CCD process for both State Court and High Court CCD cases.

Updating and Enhancing the Powers of Police and Other LEAs

The police will be able to conduct a search without a warrant when (i) they are investigating an arrestable offence, and (ii) they have reason to believe that the relevant evidence is in the possession or power of the suspect of such offence. Previously, such searches could only be conducted if a police officer has reason to believe that a person will not, or is unlikely to, produce the relevant evidence when subject to a production order.

The amendments will also expand the powers of certain non-Police LEAs (such as the Immigration and Checkpoints Authority and the Central Narcotics Bureau) to deal with matters arising from predicate offences under their purview. For instance, such LEAs will be empowered to rearrest persons who have escaped from their lawful custody and investigate bail offences.

Requiring Accused Persons to Undergo Forensic Medical Examinations (“FME“)

Where the police are investigating an offence that is reasonably suspected to have been committed, the police will be empowered to require accused persons, regardless of their consent, to undergo FME (e.g. drawing of blood and penile swabs). Reasonably necessary force may be used for FME that do not involve intimate parts or invasive procedures (e.g. buccal swabs, hair samples). Force cannot be used for procedures involving intimate parts and invasive procedures.

It will be an offence to refuse FME without a reasonable excuse (with the same penalty as that for obstruction of justice), and the court may draw negative inferences.

For alleged victims, consent will generally be required. However, FME may be conducted where informed consent cannot be obtained within a reasonable time (e.g. where the victim is in a comatose state), and a delay may result in the loss of relevant evidence.

Click on the following links for more information:

Available on the Ministry of Law (“MinLaw“) website at www.mlaw.gov.sg: