My Thoughts and Perspectives on Criminal Law Practice

This issue of the Law Gazette features the practice of community law. In that light, I have been asked to share my experiences on criminal law practice.

This made me think about the questions I am often asked, about the defence advocate’s role in the criminal justice system. If a “technical acquittal” is obtained for a client, is the community done a disservice? How does one do one’s job, given that the stakes are often the client’s liberty or, potentially, life? Is there anything much that an advocate can do, given all the factors stacked against an accused person once a decision to prosecute has been made?

Ethical Principles for Criminal Defence Advocacy

Many of these questions can be answered by reference to certain provisions of the Legal Professional (Professional Conduct) Rules 2015 (LPPCR). These are:

“Rule 14(2) LPPCR: ‘A legal practitioner who represents an accused person in any criminal proceedings must pursue every reasonable defence, and raise every favourable factor, on behalf of the accused person in accordance with law.’

Rule 14(3)(b) LPPCR: ‘A legal practitioner who represents an accused person… must not express the legal practitioner’s personal opinion as to whether the accused person is guilty, or allow the legal practitioner’s personal opinion as to whether the accused person is guilty to affect the legal practitioner’s professional assessment of the facts or the law, the legal practitioner’s conduct of the criminal proceedings, or the legal practitioner’s duty to the accused person or the court.’

Rule 14(4) LPPCR: ‘Where a legal practitioner represents an accused person, and the accused person confesses to any offence to the legal practitioner, the legal practitioner – (a) may continue to represent the accused person; but (b) must not adduce any evidence or make any submission which is inconsistent with the confession by the accused person.’

Rule 14(5) LPPCR: ‘A legal practitioner – (a) must advise an accused person he or she represents on – (i) whether to plead guilty, or to claim trial, to a charge; and (ii) whether to give evidence or to remain silent in the accused person’s defence; and (b) must abide by the decision of the accused person.’

Rule 14(6)(b) LPPCR: ‘If an accused person absconds, the legal practitioner representing the accused person may… conduct the defence on the basis of instructions received as if the accused person present was present but elected to remain silent.’”

A few points can be gathered from the above rules.

First, unlike in civil proceedings, the concept of “default judgment” is generally inapplicable. Even where an accused takes a course of action that appears highly probative of guilt, such as electing to remain silent or even absconding altogether, a verdict of guilty does not inevitably follow. The prosecution remains under an obligation to prove every element of an alleged offence.

Second, an advocate has a duty to pursue every reasonably available defence. This duty prevails even in where the accused confesses an offence.

Third and closely aligned to the previous point, is the principle that an accused is generally not required to prove his or her innocence. It is normally enough, to secure an acquittal, for an accused to raise a reasonable doubt. Taken together with the previous point, an advocate has a duty to raise all available defences that generate a reasonable doubt. This is so even if, on the balance, an accused appears more likely to be guilty than not.

Fourth, subject to strictly confined exceptions, the accused’s autonomy is paramount. An advocate is bound by the client’s instructions. These include instructions on whether to claim trial or plead guilty, or those on whether to take the stand or remain silent.

These rules exist for good reason. On an instrumental level, they minimise, as far as reasonably practicable, the possibility of a wrong conviction. More fundamentally, these rules reflect the values inherent in a common law criminal justice system such as ours. Such values include respect for human dignity, the rule of law, judicial independence, and the independence of the criminal bar. At risk of over-simplification, a criminal trial shorn of the essential elements set out above may look very much like the features of trials we see in certain places. Such features include secret trials, show trials, convictions based on vaguely worded or even non-existent laws, defence lawyers being under a duty to disclose confidential client instructions, extra-judicial detention, and so forth.

Hence, the advocate’s skills are not just to advance the narrow interests of any specific client. These skills are also deployed in service of the administration of justice. It is only when the most ostensibly reprehensible get a fair trial, can the rest of us similarly be guaranteed of a fair trial. Once that is appreciated, we have a good answer to the oft-asked question, why do you represent “obviously guilty” clients, and is securing a “technical acquittal” in the interests of the community?

Applying the Ethical Principles to Practice

With the above in mind, what are some of the things I think about when I conduct a criminal matter?

To Claim Trial or Plead Guilty?

The most consequential decision an accused has to make is whether to claim trial or plead guilty. By pleading guilty, the accused waives his right to require the prosecution to adduce admissible evidence that establishes his guilt beyond a reasonable doubt. In exchange, the prosecution normally gives the accused credit for saving prosecutorial and judicial time and resources. The prosecution does so by seeking a sentence that is lower than would have been the case had the accused been found guilty after a trial process.

At this stage, an advocate should not allow his personal feelings of whether the accused is “actually” guilty or innocent, to interfere in his assessment of the appropriate course of action. Indeed, rule 14(3)(b) of the LPPCR disallows the advocate from doing so. It is generally not an advocate’s place to say things like “touch your heart”, “you know what you did” or “think of the poor victims”. The converse also applies. Even if one believes that a client is innocent, the client is often little served by advice like “if you did nothing wrong, then you should fight”.

Instead, the advocate should take an analytical approach in the evaluation of the evidence.

First, the advocate should ascertain the client’s position on the facts. To the client’s best recollection, what happened? What was the client’s state of mind when doing the relevant act or omission? At this point, it is worth recalling that an advocate generally does not have a duty to verify the client’s instructions. The advocate can safely (and, indeed, must) act on the basis of the client’s instructions, unless the advocate has personal knowledge to the contrary, or the instructions are inherently incredible.

Second, the advocate should assess whether, based on the client’s account of the facts, there is any sustainable defence to begin with.

Third, on the assumption that the client’s account of the facts does disclose a sustainable defence, then the advocate should, as far as possible, consider whether the prosecution is able to adduce evidence which is admissible and, if believed or given full weight to, establishes every essential element of the offence. For example, who will be testifying that the client has stolen money? Is it possible for the prosecution to produce that alleged witness in court? If not, then there may be grounds to make a submission of no case to answer. Admittedly, it may be easier to make this assessment after the Criminal Case Disclosure Conference (CCDC) process.

[Read: The CCDC Regime at The Extent of an Accused Person’s Right to Statements and Disclosure of Evidence in Criminal Proceedings: Are the Current Rules Fair?]

Fourth, assuming that the prosecution will be adducing admissible evidence, then the advocate should try, in a rough and ready manner, to evaluate and advise on the likely probative value of the prosecution’s evidence. Is the prosecution relying on a confession of a co-accused that incriminates the client (such as an investigative statement or a plead guilty statement of facts)? Is there a possibility that that co-accused may retract his earlier statement? If the prosecution is relying on apparently objective evidence, how cogent is the evidence? Has there been a break in the chain of custody? Is the prosecution making any tactical decision to refuse to call any relevant witness, and if so is there a basis to draw an adverse inference? If the prosecution is relying on a self-incriminatory previous statement by the accused himself, is there any basis to question the voluntariness or weight of the statement? Has the client proffered any reasonably arguable explanation for any material inconsistency between his present instructions and his previous statements?

Fifth, assuming that this is a case in which the defence will likely be called, then the advocate should assess the cogency of the evidence proposed to be called by the accused. Is this a case in which the accused has no choice but to give evidence? Or, is there nevertheless an inexplicable gap or reasonable doubt within the prosecution’s case that justifies the accused electing to remain silent, an election that carries considerable risk? Is there any witness who can corroborate the accused’s account of events? Can that defence witness withstand rigorous cross-examination?

The above analysis may not be carried out in the exact sequence. However, I hope it is systematic enough to serve as a useful tool for assessing a client’s prospects of success. It should be borne in mind that this analysis should be a continuing one that is carried through to the end of trial, should the case advance that far.

Another point worth noting is that criminal cases are, almost always, won or lost on a handful of points. In most if not all cases, there is very little to be served by an aggressive laundry-listing of every little fault of the prosecution and prosecution witnesses. With experience and continued learning, it is hoped that an advocate gets better at quickly identifying the essential issues in each case. The sooner one picks up that skill, the better and more accurate one’s advice will be.

Representing an “Obviously Guilty” Client, and a Client You Believe in

I turn now to an issue that seems to generate never-ending interest: how does one represent an ostensibly “obviously guilty” client?

There are two senses in which the term “obviously guilty” is used. The first is in the “confession and avoidance” type of case. Such a case is where many of the key acts, omissions and incidents are undisputed, but what is in dispute are matters that can be considered “lawyer’s laws”. An example is an accused who puts forward a defence of diminished responsibility to a charge of murder. Another example is a co-accused charged with accessorial liability, such as allegedly abetting, or allegedly having a common intention with a co-accused to commit an offence. In my opinion, such cases are best approached as if one is arguing an interlocutory application in a commercial matter: rigorous application of the relevant legal principles to the evidence before the Court.

The other sense in which the term “obviously guilty” is often used, is the “your client must be lying” sort of case. Yet it is in these types of cases that we must remind ourselves of rules 14(2) and 14(3)(b) of the LPPCR, which an advocate from letting his or her personal opinions about the client’s guilt to interfere in the advocate’s duty to raise every reasonable defence and every favourable factor. The reasons for this are captured by the Court of Appeal observations in Ramesh a/l Perumal v Public Prosecutor and another appeal [2019] 1 SLR 1003 at [2]:

“It is often the case that accused persons caught with drugs in their possession will seek to disassociate themselves entirely from the drugs by claiming that they had no knowledge of them at all, or that they believed they were items of a completely different, completely innocent nature. Having disavowed all knowledge of the drugs, the accused person often gets caught in a tangle of inconsistencies and adverse facts, which he cannot explain when the evidence is tested at trial. In such situations, the courts may rightly take into account the weaknesses and inconsistencies in the accused’s account and his general lack of credibility in determining his guilt; yet it is precisely in such situations that the courts must also guard against the mind-set that once an unbelievable defence is rejected, everything is to be taken against the accused. This might lead a court, inadvertently, to fill certain gaps in the evidence in order to support a finding against the accused, when it is rightly the Prosecution which bears the burden of filling such evidential gaps, failing which a conviction cannot be sustained.”

What, then, of clients whom we genuinely believe to be innocent? The cases where your judgment calls during trial, the questions you ask at cross-examination, can make or break the client’s case? To be frank, these are the cases that make me lose sleep at night. While I do not have easy tips for these cases, I can make two broad points.

First, many of these clients would be losing sleep themselves. Many would be seeking mental health therapy. They need you to be fresh during their trial, so you can safeguard their rights to the best of your ability. Hence, as far as possible, prepare as much as you can early, and take adequate rest before the trial.

Second, the more you believe in a client’s cause, the more dispassionate you must be. As high-stakes as any case may be, legal argument remains a highly structured (even coldly clinical) exercise. My humble view is that at least in the Singapore criminal justice system, where professional judges rather than juries are the finders of fact, objective-sounding advocacy may be more persuasive than highly impassioned speeches. Keeping a minimal sense of detachment from a case also allows an advocate to properly reflect on its strengths and weaknesses. That ultimately better serves the client.

Conclusion