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Making the Case for Criminal Law

There’s an old saying: crime doesn’t pay. This is true for lawyers as it is for criminals. Criminal law is generally less lucrative than commercial practice and it is sometimes looked down on as low value, high volume, and intellectually unchallenging work. 

But that characterisation isn’t fair. Criminal law is as complex as you are willing to make it. Every case presents unique challenges if you are willing to take the time to appreciate them, because every case presents a unique human story. People who commit crimes are not always hardened career criminals. Many people do so out of desperation: perhaps to support themselves when they have no other skills or to avoid losing their homes. 

In one case I prosecuted, the accused was an elderly woman who, having spent many years in jail before, found that her best way of making a living was to fall back on the one thing she was good at – cheating. Figuring out what to do with such offenders is a complex legal and moral challenge.

This is why criminal law matters. Balancing law and order concerns against compassion and humanity is a fundamental skill that criminal lawyers must practise. And it is not only defence lawyers that do so. 

In fact, the vast majority of criminal cases in Singapore never get to court in the first place. The main source of prosecutions (i.e. criminal cases that get charged in court) is the Attorney-General’s Chambers (AGC). The AGC’s role is to review the investigation papers (i.e. a compilation of evidence from an investigation into a criminal complaint) and decide whether to proceed with a prosecution. A quick look at the AGC’s annual reports will reveal that the number of investigation papers it gets per year far exceeds the number of concluded cases. What happens is that in many cases the evidence is insufficient and no further action is taken. Or perhaps justice is tempered with mercy and a warning is given in lieu of prosecution.

A fair prosecutor is the first, best line of defence against injustice. The prosecution has no horse in the race – prosecutors don’t get paid by the conviction – and acts impartially in the public interest. This helps to ensure that only the most serious cases, with the most compelling evidence, get charged in court. 

Once a case reaches court, defence lawyers then have a role to play. If the system works as intended, the prosecution’s case will be strong. It is relatively rare, then, for a defence counsel to be able to get the accused acquitted completely. This is not American television – it is not a game to be won with a last-minute surprise witness. It is a serious matter which requires both the prosecution and defence to put in hard work to ensure that the evidence is thorough and rigorous. 

The defence counsel’s job is to test the strength of the prosecution’s case, to make sure the process is fair to the accused. It is not to win at all costs. At the end of the day, the judge, defence counsel and prosecutor all have the same goal. To achieve a fair and just outcome for all those involved.

In most cases, the defence counsel’s main value-add is in sentencing. The defence counsel helps to craft a strong plea in mitigation, that is, to explain why the offending conduct is not as bad as it sounds and to advocate for a fair sentence. This is not the same thing as pleading for leniency – mitigation is an argument from legal principle for a proportionate and just sentence. This makes a huge difference to many offenders – the difference between a fine and going to jail could be the difference between keeping your job and losing it, for example.

Deciding on a sentence is a technical, legal issue. Though many members of the public will naturally have an opinion and a reaction when they read about sentencing cases in the papers, the reality is that we cannot be guided solely by public opinion as it may lead to instances of mob justice. Like cases must be treated alike and different cases differently. The range of possible sentences is usually set by an Act of Parliament. The prosecution and defence must argue from legal principles, with reference to appropriate precedents – similar past cases whose outcomes serve as points of comparison or guidance – to convince the judge what the appropriate sentence is within the range. 

We are fortunate that Singapore’s criminal justice system works well. Trust in law enforcement agencies and prosecutors remains high. The system is also relatively efficient, with cases usually disposed of within a year. But this trust is a fragile thing – once lost, it is difficult to get back, and this leads to public cynicism, disobedience and disorder. This is happening today in the USA and Europe, where law enforcement agencies, judges and prosecutors are treated with open defiance and disrespect. 

It is more important than ever that we have good people staffing all levels of the criminal justice system, as evidenced by the Parti Liyani case, where a foreign domestic worker was acquitted of theft from her employer. The case showed how dedicated lawyers and judges can make a big difference: the lives and liberties of the accused persons literally lie in their hands. It is also a matter of public trust – ensuring that criminal cases are decided fairly is key to maintaining the legitimacy of the justice system. 

There will always be a need for criminal lawyers, whether in prosecution or defence. Criminal law is part of the fundamental glue that holds a civilised society together. Criminal law protects the weak from the strong, the meek from the powerful. All are equal before it and all benefit equally from its protection. The dividends you reap from practicing criminal law are paid not in dollars but in the satisfaction of knowing what you do is done for a moral purpose.

This article is written by Alexander Woon, Lecturer (Law Programmes), SUSS School of Law

Check out SUSS Law Programmes specialising in Criminal and Family Law here.


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