Deferred Prosecution Agreements in Singapore: What Is the Appropriate Standard for Judicial Approval?

Originating from the US, deferred prosecution agreements (“DPAs”) have made their way to the UK through the Crime and Courts Act 2013 and Singapore through the Criminal Justice Reform Act 2018. The Singapore model for approval of DPAs draws heavily from the UK and both require proof to a court that DPAs are in the “interests of justice” and that their terms are “fair, reasonable and proportionate” before DPAs can be approved. This paper considers the theoretical basis for the court’s approval of DPAs, critically examines the application of the tests for approval of DPAs in the UK and considers Singapore’s likely approach. Where appropriate, it also draws on the experience of the US and identifies lessons that can be learnt for Singapore.

Judicial Examination of Complainants in Sexual Offense Cases

This article concerns the ideal legal arrangement with respect to cross-examining complainants in sexual assault cases regarding their sexual history. The article examines the question of under what circumstances the complainant’s sexual history could be seen as as logically relevant. It also deals with finding the balance between, on the one hand, the interests of protecting the defendant and pursuing truth, which require cross-examination regarding the complainant’s sexual history, and on the other hand, the interest of protecting the complainant’s dignity and welfare.

Evidence and Variation of Confiscation Orders: R v O'Flaherty (Carl Anthony) (Court of Appeal Criminal Division, 29th of October 2018)

The appellant (O'Flaherty) (O) was appealing against two confiscation orders. In short, this case demonstrates that a judge can increase the value of a confiscation order made pursuant to s. 22 of the Proceeds of Crime Act 2002 (POCA) where adequate evidence is presented. The increase resulted from the fact that the Crown had discovered a further asset (property) that could be realized. O contended that a third party had an interest in the property and the value of the confiscation orders should not be increased. After questioning O and the third party the judge concluded that O's claim was not made out and the judge had not erred.

Criminal Evidence: Evidencing Defences to Murder. R v Goodwin (Anthony Gerard) [2018] EWCA Crim 2287

The defendant (Goodwin) (G) had bludgeoned the victim to death with a hammer. At trial he pleaded self-defence and in the alternative loss of control, the latter being a partial defence to murder.Section 54(1) of the Coroners and Justice Act 2009. The Court of Appeal held that the trial judge was right not to leave the partial defence to murder to the jury given the facts. The Court made observations in relation to how a trial judge should approach the partial defence including the fact that relevant and admissible evidence would be required for each of its elements.

Legal Privilege and Third Party Disclosure: A Comparative Analysis of UK and the US Rules

The rules of evidence in common law courts rely on the weight of evidence that is deduced by the court based on its admissibility and credibility. This is subject to the evidence that has been disclosed by the client to their lawyer either before or after the litigation is commenced in court. The availability of legal professional privilege is a substantive legal right (not a procedural rule) and it enables a person to refuse to disclose certain documents in a wide range of situations. There can be no adverse inference that can be drawn from a valid assertion of legal professional privilege on evidential grounds by the court. Under English law, privilege applies to the advice given by external lawyers and in-house lawyers (acting in their capacity as lawyers) in the case or in contemplation of litigation. Privilege in the US is broader than in the UK and may vary over time and according to locations/context but a privileged communication under UK law may not be privileged in the US. The Attorney-client confidentiality and work-product doctrine are the most common US types of privilege and this will protect investigation material if its primary purpose is to provide information to obtain a legal advice (i. e. if it is not for a business purpose). The research question in this paper is to what extent internal investigations need to be disclosed where the client confidentiality is not applicable and the court orders disclosure. It compares the framework under which privilege can be exercised, and how in the US a different interpretation allows greater margin for client confidentiality when investigations include another party if documents are compiled in contemplation of legal proceedings.

The Decisional Nature of Probability and Plausibility Assessments in Juridical Evidence and Proof

The quantification of uncertainty is a key topic in different theories and accounts of the legal process, ranging from probabilism to explanationism. These accounts invoke probability to various extents. For legal probabilism, probability is the single core concept, whereas other accounts, such as the relative plausibility theory, give it a more limited role, as one consideration among others. At the same time, controversies persist about the nature of probability and the value it may add to the understanding of the broad range of aspects that characterise the legal process. These controversies arise, in part, from the fact that probability itself is the object of confusing debates in many scientific disciplines. In view of these intricacies, this paper argues that the critical analysis and clarification of how to understand and use probability meaningfully remains a topic worthy of investigation across different theoretical perspectives. The first part of this paper critically examines a selection of persisting misconceptions about probability and objections against its use, based on discussions presented in recent evidence law literature. Part II of this paper will blend this discussion with a particular view of probability, interpreted as a personal decision, rarely acknowledged in legal literature. Using a multidisciplinary perspective and a thorough review of historical sources, we illustrate and discuss how the understanding of probability assertion as a decision promotes transparency, honesty, accountability and justifiability. This decisional perspective is further developed and discussed in Part III to show that its logical ingredients underpin key concepts of different theoretical accounts, in particular the assertion of degrees of belief, assessments of relative plausibility and verdicts about ultimate issues at trial. Overall, the paper makes the point that the isolated debates over probability, legal probabilism and reasoning under uncertainty misconceive the primary problem of the legal process, which is decision-making under uncertainty. The proposed decisional perspective clarifies these issues both analytically and descriptively, and resolves divergencies between ostensibly competing concepts such as probability and relative plausibility.

The Indian Evidence Act and Recent Formulations of the Exclusionary Discretion in Singapore: Not Quite Different Rivers into the Same Sea

Sir James Fitzjames Stephen’s Indian Evidence Act of 1872 continues to govern the law of evidence in almost a dozen common law jurisdictions today. But the fundamental features of the IEA would undoubtedly be considered anomalous when viewed against modern notions of relevance and admissibility, foremost of which are the fact that the statute represents an attempt to codify relevance exhaustively in an inclusionary, rather than exclusionary way, and the judicial discretion to exclude relevant evidence finds no obvious expression in any of its provisions. The IEA has thus had a strained relationship with the common law, especially since judicial powers assume much greater importance in the latter realm. Recent legislative and jurisprudential developments in Singapore (a jurisdiction which has adopted the IEA) have attempted to minimise the applicability of the statute’s relevancy provisions and confer greater discretionary powers on the courts to exclude evidence. The result is that there are now at least five formulations of the court’s general power to exclude evidence, and this article considers if these formulations cohere inter se, and whether any of them can co-exist harmoniously with the IEA’s admissibility paradigm, given that its raison d’être has always been to simplify the admissibility process through exhaustive codification.

An American Advantage? How American and Swiss Criminal Defense Attorneys Evaluate Forensic DNA Evidence

Critics of the American system of justice sometimes perceive “inquisitorialism” as an attractive alternative. In this article we will report a comparative study investigating the way forensic DNA evidence is handled in criminal prosecutions in the Swiss and American systems, focusing particularly on the behavior of criminal defense lawyers. We will argue that the successes and failures of American and Swiss lawyers in this context offer important insights into the relative strengths and limitations of adversarial and non-adversarial legal systems.