Time to video record statements to police?

“For the state, it offers significant protection to our law enforcement officers against groundless allegations that they threatened the accused or subjected the accused to duress,” she explained.

Her call to video record statements of accused was supported by People’s Action Party MP, Hri Kumar.

Below is the parliamentary exchange between Ms Lim, Mr Kumar, and the Senior Minister of State (Law), Ms Indranee Rajah, and the Minister for Law, Mr K Shanmugam, on the matter.

All four are lawyers, incidentally.

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Mr Hri Kumar Nair (Bishan-Toa Payoh): Recently, there has been a number of high profile cases where the time of the court has been taken up to determine whether statements of the accused and witnesses were properly recorded, or accurately represent their evidence. I had raised in 2010 the possibility of having a more independent check on this process and that would include having the statements recorded by video – by having a video recording of the statement-taking process – or at least having an independent third party like a Commissioner for Oath sign off on the statement before they are made final. These would cut down the costs of trial – of court time – to determine the integrity and accuracy of the statements and will give more confidence in the reliability of these statements when they are used in court.

Ms Sylvia Lim (Aljunied): I would like to revisit the suggestion to video record the statements given by accused persons in custody, which Mr Hri Kumar just touched on.

This practice of video recording is in place in various jurisdictions, including Australia, the United Kingdom, South Korea and Taiwan. Its purpose is as a safeguard, to ensure that the person in custody gave his statement voluntarily and that the words in the statement fell from the accused’s own lips and were not force-fed.

I first raised this issue during MinLaw’s COS five years ago in 2008. At that time, the Goverment’s response was that video recording does not ensure that statements are voluntarily given. In 2011, MinLaw made a similar response after the Ismil Kadar case.

While I agree that video recording is not a fool-proof guarantee against impropriety or allegations of such, the benefits of doing so are undeniable and accrue to both the state and the defence. For the state, it offers significant protection to our law enforcement officers against groundless allegations that they threatened the accused or subjected the accused to duress. Footage of the statement recording will show the demeanour of the accused and the recording officer, to enable the court to come to certain conclusions about whether the accused’s will was sapped through sleep deprivation or he was not in a proper frame of mind during the recording. Furthermore, statements are often challenged by the defence on the ground that the words in the statement were put in by the recording officer and did not come from the accused. A video recording will settle that question decisively.

In other countries, video recording has been found to save Police and Court time, as both sides may decide not to pursue certain matters after viewing the recording. At the same time, it is a safeguard to maintaining high standards of law enforcement. We in Singapore may need this safeguard even more, since an arrested person’s right to see counsel under arrest is so limited. Would the Government at least re-think its position on this issue or at least for capital cases?

Senior Minister of State for Education and Law (Ms Indranee Rajah): Both Ms Lim and Mr Hri Kumar raised the issue of video recording. The issue of video recording is an operational matter relating to police investigations and it comes more directly under the purview of Ministry of Home Affairs. However, MinLaw understands from MHA that there are currently no plans to introduce video recording for the taking of statements. MHA’s position is that the issue of video recording as well as other operational issues should be looked at in the following manner: there should be a fair system which seeks to ensure that crimes are solved, and the system should also seek to ensure that the rights of the accused are protected. If an accused wishes to challenge the statement given by him, there are clear avenues available today.

On the question of whether this regime can be re-thought, over the years, MHA has introduced a number of changes, and it is MHA’s intention to continue to look at the processes. I think the Government recognises the rationale behind the suggestions made by Mr Hri Kumar and Ms Lim. That rationale, together with other considerations, will be considered in the light of evolving circumstances when MHA further reviews its processes.

Ms Sylvia Lim (Aljunied): Thank you, Madam. Two clarifications for the Senior Minister of State on her response to my cuts. The first is regarding the disclosure regime and whether other statutes, for example, the PCA, would be brought under it. The Senior Minister of State seemed to suggest that it is something discretionary and may or may not happen. But my question is: should we not proceed on the basis of whether there is any good reason why it should not be brought under that regime? After all, is it not desired to have uniformity in these pre-trial disclosures, especially for cases heard by the District Court?

The second clarification is concerning the issue of video recording. The Senior Minister of State appeared, in the gist of her remarks, to say that this issue is actually an MHA issue. Perhaps, she would like to clarify because, historically, MinLaw has taken ownership of this issue of video recording, both in the CPC review in 2010 as well as certain statements made to the media about this issue.

I would like to ask: does MinLaw not have an interest in the standards of evidence brought before the Court? And how Court time is used? In fact, Mr Kumar also alluded to the fact that much Court time is being used now to refute such allegations which I think video recording could somewhat mitigate. In other countries, it has been shown that prosecutors are pushing for this because they have found the value in video recording in the handling of trials. I would like to ask the Senior Minister of State what is actually MinLaw’s ownership of this issue or whether it is just something which they think MHA should take the lead on from now on?

The Minister for Law (Mr K Shanmugam): Madam, I will answer the question. The Government takes ownership of this issue. Obviously, the Member is entitled to ask the Government and someone has to answer. The gist of the response on video-recording is that, in the past when MinLaw took up the issue, it is often that the office-holders were double-hatting, or because of the specific context of the legislation before the House.

Now, today’s question is operational in nature: video-recording has to be done by the police if it is instituted, and the Member knows that.

Therefore, given the operational nature of the issue, given the fact that MHA agencies have to deal with it, they will have to assess whether it is feasible, whether they have the necessary resources, and what implications it has on their investigative procedures. On these operational issues, we defer to them. We are happy to relay the answer on their stance, but we also think that it would be more productive, in the specific context in which this question is raised, that it be put directly to MHA, perhaps in the form of a parliamentary question. But we are happy to respond, and we have responded today. We also recognise the rationale for the Member’s point, as well as Mr Kumar’s point, and we would put it across for MHA’s consideration. So, if the Member wishes to continue to raise the issue with MinLaw, we will be happy to answer; we are just making the additional point that the Member could consider specifically raising it with MHA.

In response to the Member’s point as to whether or not MinLaw is interested in making sure that standards of evidence in court are up to scratch – I would reply, yes, absolutely. We want to make sure of that, and as everyone can see from the moves that we have made in the last few years, and as the Member will recognise, standards have been refined considerably. I think the Member will welcome the changes, for example, to the disclosure regime. Last year, when we had a meeting with the members of the criminal bar, several stood up and welcomed the changes. One of them, a leading member, said, “This is the best time to practise at the defence bar.” But that does not mean that the current position is crystallised. We have to continuously evolve, look at the best practices, and we welcome suggestions by Members and others.

Secondly, as far as criminal case disclosure is concerned, again, we put it in because we believe that it is the right thing to do, and it has been put in place for many pieces of legislation. But let us see how it works before we expand it to other agencies, other pieces of legislation.

So that rationale has already been explained. The speed with which the regime can be expanded depends also on the ability to make sure that the agencies can comply with the processes, and whether they believe in that it is workable in their particular context. That is the case in the specific context of the CPIB and the PCA. That is also the case for other agencies and other pieces of legislation, and we will continue to have conversations with CPIB and other agencies on this.

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Watch Texas exoneree Chris Ochoa explain how proper recording of his interrogation could have prevented his false confession.

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