No further action against AGC, prison officers involved in unlawful disclosure of inmates’ letters

SINGAPORE: Officers from the Singapore Prison Service (SPS) and Attorney-General’s Chambers (AGC), who were recently found by the court to have acted unlawfully by disclosing and requesting inmates’ letters, have been reminded of their obligations and no further action will be taken against them.
Home Affairs Minister K Shanmugam said in a written parliamentary answer on Wednesday (Nov 13) that there was “no basis” for further action, and the officers involved were “acting in good faith”.
Since May 2020, SPS and AGC have also instituted a policy that a prisoner’s correspondence will not be sent by the Ministry of Home Affairs or SPS to the AGC, unless with the prisoner’s consent or a court order.
Mr Shanmugam, who is also Law Minister, was replying to Member of Parliament Jamus Lim’s (WP-Sengkang) questions, which included how prisoners’ correspondence will be handled in future, and the action being taken against those responsible for the breaches. 
Last month, the Court of Appeal found that SPS and AGC had breached prisoners’ confidentiality by disclosing and retaining their letters.
Thirteen former and current prisoners on death row had filed a civil case against the Attorney-General (AG) over the forwarding of personal letters, including letters to family, their lawyers and the president.
The basis of the complaint was that SPS and AGC had breached their right to confidentiality and that they were entitled to damages. They also sought the court to declare that the AG had acted unlawfully and beyond its legal powers.
A lower court in July 2022 dismissed most of their claims, but granted “nominal damages” of S$10 (US$7.50) to three prisoners for breach of confidentiality.
The Court of Appeal eventually ruled it was unlawful for SPS to have passed copies of the prisoners’ correspondence to the AGC, and also unlawful for AGC to receive or ask for the same.
It also found that the AG had breached 11 prisoners’ confidentiality. However, it rejected the prisoners’ claim for damages, adding that there were no local decisions awarding punitive damages for a breach of confidence. 
The apex court also ruled that the lower court “did not err” in ordering the S$10 nominal damages for three prisoners and that no declaration of infringement of copyright needed to be granted.
In his written reply on Wednesday, Mr Shanmugam said that most of the documents shared with AGC were in the context of scheduling the executions of prisoners awaiting capital punishments, also known as PACPs.
“SPS’s 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,” he said.
“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.”
Mr Shanmugam also noted that the Court of Appeal ruled that the relevant prisoners’ consent, or an order of court, should have been obtained for the disclosure.
He also pointed out that the Court of Appeal said three out of the 13 prisoners were entitled to only nominal damages of S$10 each for a breach of copyright and there was no basis for the prisoners’ claims for further damages.
There was also no breach of confidence that came about from SPS officers opening or perusing any of the documents, because they were allowed to do so according to prison regulations.
“In addition, the Court of Appeal also accepted in an earlier decision which also dealt with the disclosure of prisoners’ correspondence, 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,” he said.
“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 S$10 in damages each, to three of the applicants. SPS has put in place measures to prevent a reoccurrence.”
On the issue of ensuring attorney-client privilege for prisoners, Mr Shanmugam said that under 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’s foremost responsibility. This matter will be considered carefully,” he added.