No further action to be taken over unlawful disclosure of prisoners’ confidential letters: K Shanmugam

On 13 November 2024, Workers’ Party Member of Parliament for Sengkang GRC, Associate Professor Jamus Lim, raised questions in Parliament to Singapore’s Minister for Home Affairs, Mr K Shanmugam, following a Court of Appeal ruling that the Attorney-General’s Chambers (AGC) and Singapore Prison Service (SPS) had unlawfully disclosed prisoners’ correspondence without their consent.

Asst Prof Lim had asked:

(a) how will prisoners’ correspondence be handled by SPS and AGC going forward;
(b) how will attorney-client privilege for prisoners be ensured;
(c) what actions are being taken against the officers and decision-makers responsible for the breaches; and
(d) what remedies will be provided to affected prisoners or their families

The Court of Appeal ruling, issued on 11 October 2024, found that AGC and SPS had breached prisoners’ rights to confidentiality by requesting and sharing personal correspondence, including privileged legal communications.

Further, three of the 13 appellants were awarded nominal damages of S$10 each for copyright breaches, while other damages claims were dismissed.

This appeal was initiated by 13 prisoners on death row who alleged their rights were violated when confidential documents were forwarded by SPS to AGC.

Minister Shanmugam responded to Asst Prof Lim’s questions in a written explanation regarding these disclosures, which he attributed to an attempt by SPS to ensure legal oversight in scheduling executions.

“SPS’s practice was to keep AGC informed of developments involving these Prisoners Awaiting Capital Punishment (PACPs) and to seek legal advice on whether there were any relevant pending proceedings, or issues which could give rise to such proceedings, that would require the capital sentence to be held in abeyance. This approach was adopted out of an abundance of caution,” Mr Shanmugam said, adding that officers believed they were acting within legal bounds.

The Court of Appeal ruled that such correspondence could not be disclosed without either the prisoner’s consent or a court order.

The judgment stated, “The SPS’s authority under reg 127A to read and copy letters does not extend to sharing such correspondence with third parties, including the AGC, without the prisoner’s consent or a court order.”

He further added that the Court also noted that no breach of confidence arose from SPS officers opening or perusing any of the documents, because they were entitled to do so under the Prisons Regulations.

“In addition, the Court of Appeal also accepted in an earlier decision which also dealt with the disclosure of prisoners’ correspondence1, that although there was oversight by AGC when it received correspondence from SPS, there was not an attempt to seek any advantage in court proceedings.”

Mr Shanmugam wrote that the AGC and SPS have since May 2020 adhered to stricter protocols prohibiting the forwarding of prisoner correspondence without formal consent or a court order.

“A prisoner’s correspondence will not be sent by Ministry of Home Affairs or SPS to AGC, unless the prisoner’s consent, or an order of the court, has been obtained,” he noted.

He stated, however, that no disciplinary actions would be taken against the officers involved. “The officers were acting in good faith. AGC and SPS have reminded their officers of their obligations following the court’s decision. No further action will be taken against them as there is no basis to do so,” Mr Shanmugam said.

In his remarks on attorney-client privilege, Mr Shanmugam said that Prisons Regulations provide a framework for confidentiality by preventing letters between prisoners and legal advisers from being copied or withheld, though he noted that prison security remains a primary SPS responsibility.

“This privilege cannot be at the expense of ensuring security and good order of prisons,” he stated, pledging that SPS would carefully balance these priorities.

Death row inmates’ case revealed SPS forwarded confidential letters, AGC downplayed extent of disclosures

The Court of Appeal ruling stems from concerns raised as early as 2020 when Malaysian death row prisoner Datchinamurthy Kataiah alleged that his legal communications had been shared with AGC by SPS without his knowledge.

Datchinamurthy ’s complaint was later supported by several other death row inmates, who alleged similar breaches.

Evidence submitted to the court indicated that SPS had forwarded over 68 confidential documents, which included letters to and from prisoners’ lawyers, to AGC.

The case brought renewed attention to another instance involving Singaporean death row prisoner Syed Suhail bin Syed Zin.

In September 2020, Singapore-based human rights group Community Action Network (CAN) called for an independent inquiry following allegations that SPS forwarded privileged legal communications from Syed’s lawyer to AGC.

“This matter only came to light in September 2020,” CAN stated, adding that transparency was essential to understanding the impact on affected prisoners.

CAN’s statement highlighted the importance of public accountability, citing that disclosures of legal correspondence may undermine inmate rights and judicial impartiality. It urged the government to investigate whether similar disclosures had occurred with other inmates and to examine the extent to which legal confidences may have been compromised.

In response to mounting concerns, AGC conducted an audit in 2021, which found that 13 of 22 reviewed cases involved confidential disclosures. Nevertheless, the audit’s findings provided only a partial view of the total number of correspondence disclosures, leaving the broader scope of such practices unaddressed.

Human rights lawyer M Ravi raised concerns about transparency in AGC’s disclosures, highlighting that only a limited number of instances had been disclosed.

His comments came in response to a 2021 High Court decision that denied pre-action discovery requests filed by 22 prisoners, where the court stated there is a risk of “potentially frivolous applications for discovery even before a prima facie case has been put forth” before the proceedings.

Allowing their application for pre-action disclosures against the AG and SPS, said Justice See Kee Oon, could open the “floodgates” to more parties seeking pre-action disclosures against the Government, due to such an action possibly being easier than the conventional discovery processes associated with judicial review.

These requests sought to uncover a broader pattern of correspondence disclosures between SPS and AGC.

In his submission to the High Court, Mr Ravi noted that the Attorney General (AG) had failed to disclose during the proceedings of Gobi a/l Avedian vs Attorney-General [2020] that forwarding prisoners’ personal correspondence to public prosecutors was a frequent occurrence.

He added that the AG had “misleadingly allowed the Court of Appeal to believe that the disclosures in those two cases were isolated incidents” and was therefore an ‘oversight’.

Mr Ravi argued that the lack of discovery limited understanding of the issue’s scope, stating, “The true scale of the requests and disclosures in the cases of all prisoners is unknown.”

Judgement where it states that the AGC impressed upon the case that only two instances of correspondences being forwarded by SPS to AGC