Of Deaths in Custody

By Michelle Ng

The news of A. Ganapathy has flooded the news of late. The public has asked many questions surrounding his death – how were the injuries sustained? How were investigations conducted? Are we sure that there is no proof that A. Ganapathy was abused in custody? Shockingly, the police have instead responded by asking the public to stop commenting.

The Bar Council has reiterated its stand in calling for the tabling of an Independent Police Complaints and Misconduct Commission (“IPCMC”) and Coroner’s Act. Whilst this will ensure transparency in investigation (as we cannot have the police investigating misconduct of themselves) what I am interested in are the legal standards by which we hold our police to. This too, would ultimately form the bedrock of how the IPCMC’s investigation, assuming its formation does see the light of day.

In my view, this standard would mitigate, to a large extent, the problems of misconduct, corruption and abuse of power that have tarnished the police force. The implementation of these standards should be by way of an Act of Parliament, similar to the United Kingdom’s Police and Criminal Evidence Act (“PACE Act”).

The Act should be crafted in a way so that it can be used both in criminal and civil suits. Whilst the downside is that this legislation has to be used in Court, the upside is that if investigations are not conducted according to those standards, it will affect the admissibility of evidence. The practical terms are these: with police performance currently tied to a certain extent with successful prosecution, this standard should go some ways in forcing clean investigation and good behaviour.

Let me highlight three provisions from the UK’s PACE Act as an example, so that readers can have a flavour of the standards I am referring to. Please keep in mind that the PACE Act is a very extensive document.

First, when someone is detained in the UK, the PACE Act requires the investigating police to provide them notice of their rights, which includes access to legal advice, keeping a copy of custody records, the right to have access to material to challenge the lawfulness of their detention, the maximum period of their detention and reviews, the right to medical assistance, the right to have access to evidence before the trial.

Second, when detained, each person has the right to one cell. The cell must be adequately lit, but dimmed to allow overnight sleep. It must be adequately cleaned and ventilated. Blankets, mattresses and pillows must be supplied and in sanitary conditions. Access to toilets and washing facilities must be provided. For any 24-hour period, the person detained must be allowed 8 hours of continuous rest.

Third, with regards to clinical attention, the onus is on the custody officer to call for medical attention, even if the detainee does not request for it. If the detainee so requests, medical attention must be provided as soon as reasonably practicable. With regards to a detainee who is suffering from mental illness, they must be visited at least every hour.