Preventive Measures in Place following Breach of Confidence over Exchange of Prisoners' Letters

Assoc Prof Jamus Jerome Lim asked the Minister for Home Affairs in light of the Court of Appeal ruling that the Singapore Prison Service (SPS) and Attorney-General’s Chambers (AGC) acted unlawfully by disclosing and requesting prisoners’ letters, including confidential correspondence with their lawyers (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 was delivered in a case brought by 13 Prisoners Awaiting Capital Punishment (PACPs) at the time of application. In essence, they filed legal proceedings seeking various remedies, on the basis that the Singapore Prison Service (SPS) and the Attorney-General’s Chambers (AGC) had breached their right to confidentiality under civil law, as SPS had extended copies of their correspondence to AGC.

It has been explained to the Court of Appeal why these documents were disclosed to AGC. Most of these documents were shared with AGC, in the context of scheduling the executions of PACPs. SPS’ practice was to keep AGC informed of developments involving these 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. The officers who disclosed the documents believed in good faith that they could be shared with AGC, for the purpose of seeking legal advice on scheduling, and ensuring that PACPs’ rights were not infringed in terms of further steps being taken with regard to their sentences.

The Court of Appeal ruled that the relevant prisoners’ consent, or an order of Court, should have been obtained for the disclosure.

The Court of Appeal said that three out of the 13 prisoners were entitled to damages, but only nominal damages of $10 each, for a breach of copyright. The Court of Appeal was of the view that there was no basis for the prisoners’ claims for further damages.

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.

Since May 2020, SPS and AGC have instituted a policy that 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.

Our agencies do their best to carry out their responsibilities in accordance with the law. Occasionally, there may be lapses. Here the lapses were such that the Court ordered $10 in damages each, to three of the applicants. SPS has put in place measures to prevent a reoccurrence.

In this case, 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.

The Member has also asked how attorney-client privilege for prisoners will be ensured. Under the Prisons Regulations, letters to or from a prisoner’s legal adviser cannot be copied or withheld. However, this privilege cannot be at the expense of ensuring security and good order of prisons, which is SPS’ foremost responsibility. This matter will be considered carefully.