High Court Issues Landmark Ruling on Access to Counsel

SINGAPORE, 14 January 2014  – Today Justice Choo Han Teck of Singapore’s High Court issued a judgment upholding a 20 year-old Court of Appeal decision  that allows for accused persons to be denied access to a lawyer for up to two weeks or more after their arrest and detention.

However, in relation to the Applicant before the Court, Mr James Raj, in the same judgment, the Honorable Justice wrote that “the Prosecution failed to furnish substantive grounds in support of its claim that permitting [Mr Raj] access to counsel would jeopardize [their] investigation.” Justice Choo further determined “that in the absence of evidence I did not think that permitting [Mr Raj] access to counsel on 11 November 2013, the date on which Mr Ravi first requested access to [Mr Raj], would have hindered investigations.”

Previous Judgments on Right to Counsel

In his written judgment, Justice Choo considered a number of previous decisions in the Singapore Courts wherein Justices deliberated on the issue of when the accused must have access to counsel in order to ensure the rights of the accused under Article 9(3) of the Constitution, which provides that,

“Where a person is arrested, he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.”

The current position of the Singapore judiciary, as referenced by Justice Choo in today’s decision, is derived from the Court of Appeal decision in the case of Jasbir Singh and another Public Prosecutor, which dates back to 1994. In the Jasbir Singh decision, the Court of Appeal held that “An arrested person must be granted access to counsel within a reasonable time from his arrest.”

According to TODAY, “The judge said he accepted that investigations against James Raj, and perhaps his accomplices, were complex and would require a significant amount of time to be completed, but said the prosecution had failed to furnish ‘substantive grounds’ to support its claim that permitting access to counsel would jeopardise investigations.”

What Amounts to a “Reasonable Time”?

In his decision, Justice Choo considered the issue of what amounts to a “reasonable time” between an individual’s arrest and his freedom to contact a lawyer.

Referencing a 1973 High Court decision, Justice Choo observed that it is arguable that the Court’s reference to “reasonable time” did “not mean that the police ought to be afforded a ‘reasonable time’ for investigations, as the Court of Appeal in Jasbir Singh thought… but rather intended no more than to acknowledge that, while an arrested person should be entitled to consult counsel immediately after arrest, there has to be a ‘reasonable time’ for any necessary or unavoidable delay occasioned by practical or administrative concerns, eg, having to transport the arrested person to the place of remand or having to contact the counsel of the arrested person’s choice.”

Counsels for Mr Raj had highlighted in their arguments before the Court that because the Constitution requires that accused persons must be produced before a Magistrate within 48 hours, the accused should be entitled to have access to and instruct his lawyer within 48 hours, before his appearance in the Magistrate’s Court.

Important Constitutional Development Arising from Decision on Right to Counsel

“It is heartening to note that Justice Choo affirmed in his judgment that the right to counsel is a fundamental right protected by the Constitution, and that to deny this right the police must prove that their investigation into charges would be impeded if the accused is allowed access to his lawyer. This is a new development which serves as a precedent for defence lawyers to rely on when their access to accused persons is denied by police”stated Mr M Ravi, who is co-representing Mr James Raj with lawyer Mr Eugene Thuraisingam. “However, overall, we have a long way to go to safeguard the right to counsel in Singapore in a manner which is in line with the international human rights standards which have been evolving in our region.”

Judgement passed on constitutional challenge on one’s rights to consult and to be defended by a legal practitioner.

 

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