Enhancements to Criminal Disclosure and Unsoundness of Mind Regime Take Effect on 14 February 2025

On 17 January 2025, the Ministry of Law (“MinLaw“) announced that Phase 3 of the Criminal Procedure (Miscellaneous Amendments) Act 2024 (“Amendment Act“), which was passed in Parliament on 5 February 2024, will take effect on 14 February 2025. To cater for ongoing criminal cases and specific situations, the Criminal Procedure (Saving and Transitional Provisions – Disclosure) Regulations 2025 have been enacted and also took effect on 14 February 2025.

The Amendment Act amends the Criminal Procedure Code 2010 (“CPC“) and certain other Acts. For more information, please see our previous write-ups titled.

The key amendments under Phase 3 of the Amendment Act serve to clarify: (i) the criminal disclosure regime; and (ii) the unsoundness of mind (“UOM“) regime and are summarised below.

1. Codify common law disclosure obligations.The amendments place the common law disclosure obligations on a statutory footing alongside the Criminal Case Disclosure (“CCD“) regime and ensure their alignment with the sequential nature of the CCD regime. The amendments will codify, clarify and modify:

• • The Kadar disclosure obligations (“KDO“), where the Prosecution must disclose unused material that tends to undermine the Prosecution’s case or support the Defence’s case, and is likely to be: (i) admissible, and is prima facie credible and relevant to the guilt or innocence of the accused; or (ii) inadmissible, but would provide a real (not fanciful) chance of pursuing a line of inquiry that leads to material that falls within the description at (i).

• • The additional disclosure obligations (“ADO“), where the Prosecution must disclose statements of material witnesses, i.e. any witness, other than a Prosecution witness, who may confirm or contradict the accused’s defence in material respects.

• • The scope, timing and continuing nature of the KDO and ADO.

In relation to the ADO: The ADO is to be fulfilled after the accused has committed to a defence, either at the same time as the service of his Case for the Defence (“CFD“) (where there is a CFD) or after he has testified or elected not to testify (where there is no CFD).

In relation to the KDO: Unused materials will be disclosed earlier pursuant to the KDO, either when the Case for the Prosecution (“CFP“) is filed (CCD cases) or before the trial commences (non-CCD cases). Unused accused statements are outside the scope of the KDO and required to be disclosed only after the accused has testified or elected not to testify (in non-CCD cases or CCD cases where the CFD is not filed). 

2. Fine-tune CCD regime. The amendments will require compulsory participation in both State Courts and General Division of the High Court (“High Court“) CCD cases, by removing the possibility of opting out of the CCD regime in State Courts cases and making it compulsory for the accused to file a CFD after receiving the CFP in High Court cases. Further, the Prosecution will be required to file a Summary of Facts in support of the charge as part of its CFP in High Court CCD cases. The court may order a discharge not amounting to an acquittal if the Prosecution fails to file the CFP.

3. Clarify UOM regime. The amendments will clarify and improve the CPC’s UOM regime including the procedures governing those who are “unfit to plead” (i.e. incapable of making their defence) and those who are acquitted on the basis that they were of unsound mind at the time that they committed the offences. The amendments will:

• • clarify that only the High Court can determine the maximum duration for which a person who is “unfit to plead” may be confined for a case that must or ought to be determined by the High Court, and set out the applicable process for such cases;
  • allow the court to order the giving of evidence or appearance in any UOM proceedings by videoconferencing, if it is in the interests of justice and there are sufficient administrative and technical facilities and arrangements;
  • allow the court to dispense with the attendance of persons subject to UOM proceedings if it would be in the interests of justice in light of the person’s state of mind or physical or mental condition; and
  • clarify the mechanisms for reporting of the Institute of Mental Health visitors’ reviews and the issuance of confinement orders and conditional release orders by the Minister.

Click on the following links for more information (available on the MinLaw website at www.mlaw.gov.sg):

• MinLaw Press Release titled “Phase 3 Commencement of the Criminal Procedure (Miscellaneous Amendments) Act 2024”
• MinLaw Press Release titled “Criminal Procedure (Miscellaneous Amendments) Bill 2024” and “Annex – Details of key proposals under the Criminal Procedure (Miscellaneous Amendments) Bill 2024”
• Second Reading Speech by Senior Parliamentary Secretary Rahayu Mahzam on the Criminal Procedure (Miscellaneous Amendments) Bill 2024