Vol 10 (2018/19)

Is it Time to Decriminalize HIV Non-Disclosure in Singapore?

By Daryl Yang*

I. INTRODUCTION

Following the recent data leak of the HIV registry, founding President of Action for AIDS Singapore Professor Roy Chan called for Singapore to “adopt the internationally recognised guideline that criminalisation should be limited to cases where there is intentional and malicious transmission of the human immunodeficiency (“HIV”) virus.”1

Currently, section 23 of the Infectious Diseases Act2 [IDA] imposes a legal duty on persons living with HIV (“PLHIV”) to disclose their HIV-positive status to sexual partners. In 2008, the criminal penalties for a breach of this statutory duty was increased five-fold to a fine of up to $50,000 or 10 years’ imprisonment.

That same year, the Joint United Nations Programme on HIV/AIDS (“UNAIDS”) and the United Nations Development Programme (“UNDP”) published the Policy Brief on Criminalisation of HIV transmission by UNAIDS, which urged governments to repeal HIV-specific criminal laws, including those that mandated the disclosure of HIV status.3 Subsequently, in 2012, the Global Commission on HIV and the Law published a report calling for the repeal of such laws on the basis that they are counterproductive to reducing the rate of HIV infection.4

In light of Professor Chan’s suggestion, this article presents the case for decriminalisation of HIV non-disclosure in Singapore. Firstly, the criminal law may be ineffective and counterproductive in ending the HIV/AIDS epidemic. Secondly, such a law is unnecessary because there are existing criminal provisions under the Penal Code that can punish irresponsible PLHIV who irresponsibly transmit the virus to others or put others at risk of contracting HIV. Finally, even if Parliament decides against repealing s 23, it should be reformed to address the disproportionate burden that such a law imposes on one of the most vulnerable groups in society.

II. LEGISLATIVE OBJECTIVES OF THE CRIMINALISATION OF HIV NON-DISCLOSURE

Before proceeding, it is crucial to note that this paper does not contend the moral duty that PLHIV have to disclose their HIV-positive status to their sexual partners. What is in question is whether a breach of that moral duty should be codified into a criminal offence. To answer this, it is necessary to consider the legislative objectives behind s 23 of the IDA.

After the first case of HIV was reported in 1985, Part IIIA5 of the IDA was enacted a few years later in 1992 to address “irresponsible and dangerous behaviour” by PLHIV.6 This led to the introduction of the current s 23(1), which prohibits PLHIV from engaging in sexual activity unless he has informed his sexual partner of the risk of contracting HIV/AIDS from himself and that other person has voluntarily agreed to accept that risk. Subsequently, in 2008, s 23(2) was introduced to compel a person who has “reason to believe that he has” or “has been exposed to a significant risk” of contracting HIV/AIDS to disclose to their sexual partners the risk of contracting HIV/AIDS from him. The public health goal of s 23 generally therefore appears to be the prevention or reduction of HIV/AIDS infection as part of a larger strategy to end the HIV/AIDS epidemic. In addition, there is a normative element to the law where the non-disclosure of one’s HIV-positive status before engaging in sexual activity is regarded as “irresponsible” and morally reprehensible.7

The next section argues that the criminalisation of HIV non-disclosure may hinder, rather than help, efforts to end the HIV/AIDS epidemic. Section III suggests that existing provisions in the Penal Code are sufficient to prosecute irresponsible PLHIV.

III. CRIMINALISATION OF HIV NON-DISCLOSURE IS NOT EFFECTIVE

There does not appear to have been any local study on the effectiveness of the criminalisation of HIV non-disclosure on reducing HIV infection rates. However, epidemiological research in other contexts have suggested that such laws may not only be ineffective but also be counterproductive in achieving the purported goal of ending the HIV/AIDS epidemic.

Firstly, the criminalisation of HIV non-disclosure may perpetuate social stigma towards PLHIV. This occurs in two ways. On one hand, such laws may reinforce prevailing social attitudes and the culture of blame that regard PLHIV as irresponsible individuals who engage in high-risk sexual activity.8 On the other hand, the use of the criminal law in managing a public health problem can shape perceptions towards PLHIV not so much as patients who deserve medical care and support but as potential criminals whose behaviour must be coercively constrained.9

That such laws may perpetuate stigma towards PLHIV is significant because epidemiological research has found that HIV/AIDS stigma can seriously undermine wider efforts to address the epidemic.10 Firstly, studies in China, South Africa and France have demonstrated an association between either perceived or actual experience of stigma and increased risk behaviour.11 In addition, the reduction of stigma towards HIV/AIDS has been shown to have a significant impact on increasing HIV testing and treatment rates.12 For instance, a recent study in New York found that higher anticipated HIV stigma was associated with a lower probability of having been tested for HIV in the previous six months.13 Similarly, a review of studies done in Sub-Saharan Africa found that the fear of stigma contributes significantly to low HIV testing rates due to concerns with being seen at a testing centre, which was associated with sexual promiscuity and assumed HIV-positive status.14

This is concerning because current statistics already suggest that there is significant stigma in getting tested. Only 24% of new cases of HIV infection in 2016 were detected via voluntary HIV screening.15 In 2015, it was even lower at 18%, which HIV/AIDS advocacy group Action for AIDS described as “extremely worrying”.16 Since early testing and detection have been recognised as being critically important to ending the HIV epidemic given that “late diagnosis is associated with poorer clinical outcomes and greater opportunities for HIV transmission”,17 the negative impact that the criminalisation of HIV non-disclosure may have on HIV testing rates seems to run contrary to the very purpose it was enacted for.

Secondly, research has also demonstrated that such laws are ineffective in influencing behaviour in the first place.18 Such laws do not affect HIV risk behaviours either through mechanisms of incapacitation, norm setting and deterrence. Firstly, since very few individuals are incarcerated across jurisdictions for violating HIV non-disclosure laws, the law is not effective in removing irresponsible PLHIV from society to protect the general public. Secondly, the existence of such laws have not been shown to affect or change social attitudes or perceptions on moral responsibility regarding HIV transmission.19 Finally, there is also insufficient evidence to suggest that such laws are effective in deterring HIV risk behaviour, with mixed findings across different communities.20

Though these findings were based on research in other jurisdictions, they are at least indicative that such laws may not achieve the purpose of reducing HIV infection rates that Parliament had contemplated it would serve. Coupled with the negative impact that criminalisation has on stigma and HIV testing, such a law may not only be ineffective, but even counterproductive to achieving the intended goal of mitigating the HIV/AIDS epidemic in Singapore.

IV. CRIMINALISATION OF HIV NON-DISCLOSURE IS UNNECESSARY

Another reason behind the enactment of s 23 was to punish persons who irresponsibly transmit HIV/AIDS to others or put others at risk of contracting HIV/AIDS. However, considering the problems discussed in the previous section, it is suggested that existing criminal legislation can sufficiently address the risk of irresponsible transmission. Consequently, s 23 may be unnecessary to address such irresponsible sexual behaviour and its repeal should be seriously contemplated.

Firstly, s 326 of the Penal Code21 [PC] may be an appropriate legislation to criminalise the deliberate and malicious transmission of HIV. The provision makes it an offence for anyone to voluntarily cause grievous hurt by means of any substance which is “deleterious to the human body… to receive into the blood” and is punishable with an imprisonment term of up to 7 years. In conjunction with the repeal of s 23 of the IDA, Parliament may introduce the actual transmission of HIV/AIDS as a kind of grievous hurt under s 320 of the PC. Many other jurisdictions without HIV-specific laws, including the United Kingdom and Australia, have been able to address such reprehensible conduct in such a way.22

Furthermore, in comparison, the criminal penalties under s 23 seem extremely disproportionate given that the mere failure to disclose one’s HIV status may attract more serious consequences, namely imprisonment up to 10 years and a fine of up to $50,000, than the actual causing of hurt to another person. While this was allegedly justified on the basis of the “seriousness with which society views such offences”,23 this may not be a sound reason particularly when it relates to a group that is already vulnerable. Indeed, it has been suggested that such social attitudes may be “polluted at its core by fear of HIV or disdain for those who are infected with it”.24

Secondly, there are also other criminal provisions such as s 338 PC which relates to causing grievous hurt by doing a rash or negligent act. This may be used to prosecute an irresponsible PLHIV who does not take reasonable precautions in practicing safe sex. Alternatively, where there is no actual transmission of HIV, an irresponsible PLHIV may still be prosecuted under s 336 PC for an act that endangers the life or personal safety of other persons.

These laws therefore already sufficiently address situations where an irresponsible PLHIV either directly causes harm to others or puts others at risk of contracting HIV/AIDS. This may be preferable to s 23 IDA which compels all PLHIV to disclose their HIV-positive status. Given that there remains significant stigma against PLHIV in our society, s 23 IDA may impose a disproportionate and unfair burden on them. It is to this issue that we turn to in the next section.

V. CRIMINALISATION OF HIV NON-DISCLOSURE DISPROPORTIONATELY BURDENS PLHIV

Gostin proposed that public health law is a field that aims to “pursue the highest possible level of physical and mental health in the population, consistent with the values of social justice”. In his view, the concept of social justice is founded upon two moral impulses that animate the field of public health: “to advance human well-being by improving health and to do so particularly by focusing on the needs of the most disadvantaged”.26 The criminalisation of HIV non-disclosure may run contrary to the values of social justice because it unfairly burdens PLHIV as a group that is one of the most vulnerable in our society.

One dimension of justice is distributive justice or proportionality, which demands that benefits and burdens be distributed fairly.27 In this regard, s 23(1) seems to impose an unfair burden of disclosure on those living with HIV. While it may be justified in relation to the specific situation contemplated by the then Minister of Health where wives of husbands who visit sex workers are especially vulnerable,28 it is less clear in other scenarios outside of marriage where the other party agrees to engage in unsafe sexual practices with the PLHIV notwithstanding his HIV-positive status. Given that s 23 contemplates consensual sexual activity, it may be potentially unjust to impose such a weighty legal burden on PLHIV in two ways. This is especially in light of their already vulnerable status in a society that remains both ignorant and hostile towards PLHIV.

Since practising safe sex can significantly reduce the risks of contracting HIV, mandating all PLHIV to disclose their HIV-positive status without affording them any other alternatives may be disproportionate and unjust. This is in light of the prevailing stigma against HIV in society: a PLHIV must either risk exposing himself to prejudice and discrimination if he discloses his HIV-positive status or potentially be prevented from experiencing sexual intimacy with another person at all. This is especially since there are no safeguards to prevent sexual partners from revealing this information to other persons.29 After all, the then Minister of Health had himself acknowledged that “a promiscuous person who practises safer sex, by using condoms every time he engages in sexual activity, is not considered at high risk of contracting HIV/AIDS”.30 This comment indicates the recognition that consistent condom use significantly reduces the risk of HIV transmission; there does not appear to be any reason why this same reasoning should not also be applied to avail PLHIV to the alternative of adopting responsible sexual practices over disclosing their HIV-positive status.

It may therefore be problematic that this duty is imposed on all PLHIV, including those with undetectable viral loads where the risk of transmitting HIV to others is negligible.31 Currently, about 77% of those diagnosed with HIV are on sustained treatment and about 82% of these individuals have undetectable viral loads.32 This means that about 63% of all PLHIV in Singapore are effectively non-infectious. It is not clear why these individuals should be imposed with the duty of disclosure when they are epidemiologically no different from a person with a HIV-negative status.33 There have been significant medical advancements since s 23 IDA was enacted and the law should accordingly be amended to reflect these developments.

In sum, even if Parliament decides against the complete repeal of the law, it is suggested that s 23(1) should be amended to give PLHIV an alternative option to disclosing their HIV-positive status by taking reasonable precautions. This option is available under s 23(2) to persons who have reason to believe that he has HIV/AIDS or have been exposed to a significant risk of contracting HIV/AIDS. It should be extended to PLHIV as well for two reasons. Firstly, s 23 was intended to punish irresponsible PLHIV. However, it imposes on responsible PLHIV who are compelled to disclose their HIV-positive status even if they actively make responsible choices in their sexual relations. Secondly, HIV is no longer the “death sentence”34 that people have once thought it to be and the law should be updated to reflect the medical developments in this respect.35

VI. CONCLUSION

The use and effectiveness of criminal law in public health management has always been controversial and this paper has presented a case for repealing, or at least reforming, s 23 of the IDA. While criminalisation of such behaviour may be intuitively appealing on moral and emotional grounds, these cannot be sufficiently reasonable grounds on which our laws are made. This does not mean that PLHIV or those at high risk do not have a moral duty to disclose their risk status to their sexual partners; indeed, it is unlikely that this moral duty is controversial at all. Rather, this paper has demonstrated that it is not clear that imposing criminal liability for HIV non-disclosure is necessarily justified.

Ultimately, this paper does not purport to have provided a conclusive answer; instead, it is hoped that the foregoing discussion will engender greater reflection on the matter. At a minimum, the criminalisation of HIV non-disclosure may not be as straightforward as many might intuitively assume. A review of this area of the law requires the contribution of experts from different disciplines and it is hoped that there will be more written on this subject beyond this paper.


* Fourth Year Student, Faculty of Law, National University of Singapore. An expanded version of this article titled “Evaluating the Criminalisation of HIV/AIDS Non-Disclosure Laws in Singapore” will be published in the upcoming Volume 36 of the Singapore Law Review. 

[1] Roy Chan, “HIV Registry data leak: Time for change to reduce stigma”, The Straits Times (31 January 2019), online  <http://afa.org.sg/time-for-change-to-reduce-stigma/>.

[2] Cap 137, 2003 Rev Ed Sing.

[3] UNAIDS, “Criminalisation of HIV Transmission”, online: <http://www.unaids.org/sites/ default/files/media_asset/jc1601_policy_brief_criminalization_long_en.pdf>.

[4] Global Commission on HIV and the Law, “Risks, Rights & Health”, online: <https://hivlawcommission.org/wp-content/uploads/2017/06/FinalReport-RisksRightsHealth-EN.pdf>.

[5] Now Part IV of the Act.

[6] Parliamentary Debates Singapore: Official Report, vol 59, col 447 (27 February 1992) (Minister for Health (Mr Yeo Cheow Tong)).

[7] Ibid.

[8] Catherine Dodds &, Peter Keogh. “Criminal Prosecutions for HIV Transmission: People Living with HIV Respond” (2006) 17 International Journal of STD & AIDS 315.

[9] Trevor Hoppe, “From sickness to badness: The Criminalization of HIV in Michigan” (2014) 101 Social Science & Medicine 139.

[10] Carol L Galletly & Steven D Pinkerton, “Toward rational criminal HIV exposure Laws” (2004) 32:2 The Journal of Law, Medicine & Ethics 327; Carol L Galletly & Steven D Pinkerton. “Conflicting Messages: How Criminal HIV Disclosure Laws Undermine Public Health Efforts to Control the Spread of HIV” (2006) 10:5 AIDS and Behaviour 451.

[11] Anish P Mahajan et al, “Stigma in the HIV/AIDS Epidemic: A Review of the Literature and Recommendations for the Way Forward” (2008) 22 AIDS S67.

[12] UNAIDS, “Confronting Discrimination: Overcoming HIV-related stigma and discrimination in health-care settings and beyond”, online: <http://www.unaids.org/sites/ default/files/media_asset/confronting-discrimination_en.pdf>.

[13] Sarit A Golub & Kristi E Gamarel, “The Impact of Anticipated HIV Stigma on Delays in HIV Testing Behaviors: Findings from a Community-Based Sample of Men Who Have Sex with Men and Transgender Women in New York City” (2013) 27:11 AIDS Patient Care and STDs 621.

[14] Maurice Musheke et al, “A systematic review of qualitative findings on factors enabling and deterring uptake of HIV testing in Sub-Saharan Africa” (2013) 13:1 BMC Public Health.

[15] Ministry of Health, “Update on the HIV/AIDS situation in Singapore 2017 (June 2018)”, online: <https://www.moh.gov.sg/content/ moh_web/home/statistics/infectiousDiseasesStatistics/HIV_Stats/update-on-the-hiv-aids-situation-in-singapore-2017--june-2018-0.html>.

[16] Channel NewsAsia, “Voluntary HIV screening rate in Singapore "extremely worrying": Action for Aids”, online (9 June 2016): <https://www.channelnewsasia.com/news/singapore /voluntary-hiv-screening-rate-in-singapore-quot-extremely-worryin-7986390>.

[17] Ibid.

[18] Zita Lazzarini et al, “Criminalization of HIV Transmission and Exposure: Research and Policy Agenda” (2013) 103(8) American Journal of Public Health 1350.

[19] Scott Burris et al, “Do Criminal Laws Influence HIV Risk Behavior? An Empirical Trial” (2007) 4 Ariz. St. L.J. 35.

[20] Ibid; Carol Galletly et al, “A Quantitative Study of Michigan’s criminal HIV exposure law” (2012) 24(2) AIDS Care 174; Pamina Gorbach et al, “Don't ask, Don't tell: Patterns of HIV Disclosure among HIV Positive Men who have sex with Men with recent STI practising High Risk behaviour in Los Angeles and Seattle” (2004) 80(6) Sexually Transmitted Infections 512.

[21] Cap 224, 2008 Rev Ed Sing.

[22] UNAIDS, “Background Paper – Criminalisation of HIV Non-Disclosure, Exposure and Transmission: Background and Current Landscape”, online: <http://www.unaids.org/sites/def ault/files/media_asset/JC2322_BackgroundCurrentLandscapeCriminalisationHIV_en.pdf>.

[23] Supra note 25.

[24] Scott Burris & Matthew Weait, “Criminalisation and the moral responsibility for sexual transmission of HIV” (2011) Working paper prepared for the Third Meeting of the Technical Advisory Group of the Global Commission on HIV and the Law, online: < http://bibliobase.sermais.pt:8008/BiblioNET/upload/PDF/0571.pdf>.

[25] Lawrence O Gostin, “A Theory & Definition of Public Health Law” (2007) 10 Journal of Healthcare Law & Policy 1.

[26] Ibid.

[27] Nancy E Kass, “An Ethics Framework for Public Health” (2001) 91:11 American Journal of Public Health 1776, 1780 citing Beauchamp and Childress. 

[28] Parliamentary Debates Singapore: Official Report, vol 84, col 2661 (22 April 2008) (The Minister for Health (Dr Khaw Boon Wan)).

[29] Section 25 of the IDA which protects the identity of persons with AIDS, HIV or other sexually transmitted diseases applies only to persons who is aware or has reasonable to believe that a person has AIDS or HIV in the performance or exercise of his functions or duties under the IDA.  

[30] Supra note 25.

[31] Alison J Rodger et al, “Sexual Activity Without Condoms and Risk of HIV Transmission in Serodifferent Couples When the HIV-Positive Partner Is Using Suppressive Antiretroviral Therapy” (2016) 316:2 Jama 171.

[32] Ministry of Health, “Speech by Dr Amy Khor at the 10th Singapore AIDS Conference, 3 Dec”, online: <https://www.moh.gov.sg/content/moh_web/home/pressRoom/speeches_d/ 2016/speech-by-dr-amy-khor-at-the-10th-singapore-aids-conference--3-d.html>.

[33] Myron S Cohen et al, “Prevention of HIV-1 Infection with Early Antiretroviral Therapy” (2011) 365:5 The New England Journal of Medicine 493.

[34] Parliamentary Debates Singapore: Official Report, vol 70, col 31 (26 February 1999) (Mr Bernard Chen (West Coast)).

[35] TodayOnline, “Life is better now for HIV patients in S’pore”, online (25 November 2015): <https://www.todayonline.com/daily-focus/health/life-better-now-hiv-patients-spore>.


The PDF version of this article is available for download here.

Footpath Warriors: A Proposed Sentencing Framework for Personal Mobility Device Accidents

By Darren Ang*

I. INTRODUCTION

The use of personal mobility devices [PMDs] on footpaths in Singapore has led to numerous PMD-related accidents,1 some of which have resulted in grave injuries to the victims.2 The propensity for PMDs to cause harm is well known by the public – there have been numerous calls to tighten legislative controls on PMD usage, including a request to completely ban PMD usage on footpaths.3

These calls have not gone unanswered, and Parliament has been consistently tightening legislative controls over PMD usage over the past year. The passing of the Active Mobility Act 20174 [AMA] added s 5A to the Road Traffic Act5, which expressly prohibits the use of PMDs on public roads in most circumstances. Following the AMA, the Active Mobility Regulations 20186 introduced additional controls over, inter alia, the sale and modification of PMDs.

While these legislative controls are relatively new, and their effectiveness cannot be conclusively determined, it unfortunately appears that the measures in place are still insufficient – calls for the complete banning of PMDs have not ceased.7 To supplement the legislative measures already in place, the courts may step in to pass sentence on PMD users who cause hurt to pedestrians, and in doing so, deter such careless behaviour enough to lower the incidence of PMD accidents.

II. SCOPE AND PURPOSE OF THE ARTICLE

This article proposes a sentencing framework for PMD accident cases where grievous hurt is caused, by reconciling the unique characteristics of PMD accident cases with the sentencing framework for causing grievous hurt by a negligent act that endangers human life under s 338(b) of the Penal Code8 [PC] in Tang Ling Lee v Public Prosecutor9 [Tang Ling Lee]. The offence of causing grievous hurt by a negligent act that endangers human life is chosen as a benchmark, as most reported PMD accidents would likely fall under this provision.10

III. THE TANG LING LEE FRAMEWORK

In Tang Ling Lee, See Kee Oon J laid down a general sentencing framework to be applied for road traffic cases charged under s 338(b) of the PC when the accused claims trial (referred to in this article as the ‘Tang Ling Lee framework’).11 The Tang Ling Lee framework is a two-step inquiry, which first categorises the offence under one of three pre-established categories to determine a starting point sentence (referred to in this article as the ‘three-category approach’). Following which, the framework allows further adjustments to be made to take into account the relevant mitigating and aggravating factors (referred to in this article as the ‘adjustments step’).12

At the first step of the inquiry, a presumptive sentencing range will be determined as a starting-point sentence, having regard to the twin considerations of harm and culpability.13 See Kee Oon J summarised the three-category approach in the following table format:14

  • Category 1:

    • Circumstances: Lesser harm and lower culpability;

    • Presumptive Sentencing Range: Fines.

  • Category 2:

    • Circumstances: Greater harm and lower culpability Or Lesser harm and higher culpability;

    • Presumptive Sentencing Range: One to two weeks’ imprisonment.

  • Category 3:

    • Circumstances: Greater harm and higher culpability;

    • Presumptive Sentencing Range: More than two weeks’ imprisonment.

See Kee Oon J defined “harm” as the “nature and degree of the grievous bodily injury caused to the victim(s)”15, and the “degree of culpability” as “the degree of relative blameworthiness disclosed by an offender’s actions … measured chiefly in relation to the extent and manner of the offender’s involvement in the criminal act”.16 Additionally, the factors which would affect the “culpability” limb under the three-category approach would include: (i) the manner of driving, (ii) the circumstances which might have increased the danger to road users, and (iii) the offender’s reasons for driving.17

IV. THE TANG LING LEE FRAMEWORK ADJUSTED FOR PMD ACCIDENTS

While the Tang Ling Lee framework was caveated to only apply to road traffic cases,18 it has been adjusted to apply in non-road traffic cases as well. Most notably, the District Judge in Public Prosecutor v Cai Mei Ying19 [Cai Mei Ying] applied the three-category approach under the Tang Ling Lee framework for a s 338(b) case involving a bicycle accident, but held that the presumptive sentencing ranges were not binding due to the different contexts in which the cases occurred.20

It is submitted that when a PMD accident case charged under s 338(b) of the PC reaches the courts, there would be no practical reason to deviate from the approach taken by the District Judge in Cai Mei Ying. Moreover, the District Judge in Cai Mei Ying noted that the Tang Ling Lee framework was expressly caveated to only apply to road traffic cases, but recognised that the parties had agreed that “because Tang Ling Lee involves the co-existence of vehicles and humans in shared spaces”, the framework was applicable to their case.21 PMD accidents also involve the “co-existence of vehicles and humans in shared spaces”, and it would follow that the approach taken in a future case involving a PMD accident is likely to be similar to the approach taken by the District Judge in Cai Mei Ying.

It would then be apposite to consider what adjustments might be made to the Tang Ling Lee framework for PMD accident cases, and it is argued that the main considerations for adjusting the Tang Ling Lee framework in these cases would be: (i) the lower propensity for PMDs to cause harm when compared to motor vehicles (referred to in this article as the ‘harm factor’), and (ii) the objective of general deterrence (referred to in this article as the ‘deterrence factor’). If the courts were to follow the approach in Cai Mei Ying for adjusting the Tang Ling Lee framework, they would apply the three-category approach without using the presumptive sentencing ranges, and then account for the above two considerations at the adjustments step of the Tang Ling Lee framework. These two considerations will now be dealt with in turn.

A. Downward adjustments for the ‘harm factor’

PMDs have a lower propensity to cause harm than motor vehicles, as they travel at lower speeds and are not as heavy as motor vehicles. This could warrant a downward adjustment of the starting-point sentence at the adjustments step of the Tang Ling Lee framework.

As discussed above, the approach in Cai Mei Ying ought to be the first port-of-call for the discussion. However, the District Judge in Cai Mei Ying did not make a clear finding on the effect of the ‘harm factor’, though it was noted that as a guiding principle, “drivers of heavy vehicles stand to receive heavier punishments than riders of light vehicles due to the greater damage their vehicles can cause”.22

It is then helpful to consider the approach taken in Public Prosecutor v Khairul bin Hairuman23 [Khairul], which was a case involving a fatal bicycle accident. The accused in Khairul was charged under the rashness limb of s 304A of the PC, and the District Judge applied the three-category approach from the case of Public Prosecutor v Ganesan Sivasankar24 [Ganesan], including the presumptive sentencing ranges.

The Ganesan framework was also laid down by See Kee Oon J to apply to any s 304A rashness case when the accused claims trial, and it uses a three-category approach followed by an adjustments stage as with the Tang Ling Lee framework.25 The only differences between the two frameworks are that the Ganesan framework does not consider the harm caused (as it is, by definition of the offence, the death of the victim),26 and that the presumptive sentencing ranges in Ganesan under the three-category approach are more severe. The table laid out by See Kee Oon J in Ganesan is illustrative of these differences:27

  • Category 1:

    • Accused’s culpability: Low;

    • Presumptive sentencing range: 3 to 5 months’ imprisonment.

  • Category 2:

    • Accused’s culpability: Moderate;

    • Presumptive sentencing range: 6 to 12 months’ imprisonment.

  • Category 3:

    • Accused’s culpability: High;

    • Presumptive sentencing range: More than 12 months’ imprisonment.

The District Judge in Khairul found that the accused’s conduct fell within Category 2 of the Ganesan framework, and then discounted the accused’s sentence at the adjustments stage to “reflect the lower consciousness of risk of harm towards others associated with the riding of the bicycle in comparison with the riding or driving of motorised vehicles”.28

The approach in Khairul would support the position that the lower propensity for PMDs to cause harm could count for a significant downward adjustment at the adjustments stage of the Tang Ling Lee framework.

B. Upward adjustments for the ‘deterrence factor’

As discussed in the introduction of this article, PMD usage is an issue of great public concern in Singapore, and deterrent sentencing in the courts would be an appropriate supplement for the legislative controls already in place. Therefore, the court may be inclined to make an upward adjustment of the starting-point sentence for the purpose of general deterrence.

In Cai Mei Ying, the ‘deterrence factor’ was effectively the only aggravating factor taken into consideration at the adjustments stage of the Tang Ling Lee framework.29 Interestingly, the District Judge was cognisant of the issue of PMD accidents, classifying both cyclists and PMD users within the same class of persons and commenting that “with the increased popularity of PMDs and the use of bicycles … all cyclists and users of PMDs must be reminded to take extra care when they are in shared spaces”.30 Therefore, it is likely that the court would take the ‘deterrence factor’ as a significant aggravating factor at the adjustments stage of the Tang Ling Lee framework.

Additionally, a common thread that binds most cases charged under s 338(b) of the PC is that the accused person had breached certain safety regulations which led to the accident – the accused in Cai Mei Ying was cycling in a no-cycling zone31 and the accused in Tang Ling Lee failed to give way to a motorist with the right of way32. The breach of safety regulations counted towards a finding of higher culpability at the three-category approach stage, ultimately leading to a higher starting-point sentence. Therefore, it could be argued that the purpose of general deterrence is served indirectly at the “culpability” limb of the three-category approach.

V. CONCLUSION

To summarise the proposed method for adjusting the Tang Ling Lee framework for PMD accident cases charged under s 338(b) of the PC, the courts are likely to apply the three-category approach without using the presumptive sentencing ranges to determine a starting-point sentence. Following which, at the adjustments stage, the court would account for the ‘harm factor’ to adjust the starting-point sentence downwards and the ‘deterrence factor’ to adjust the starting-point sentence upwards.

For PMD users, who would bear the full brunt of this proposed method, the message is clear – if ever placed in an unfortunate s 338(b) situation where the harm has already been caused, it would be in their best interest to render as much assistance to the victim as necessary and comply with all orders, for a possible finding of lower culpability.


* A most heartfelt thanks to Professor Alan Tan, for answering my queries and helping immensely with the framing of my research questions.

[1] Adrian Lim, “Parliament: About three accidents a week involving personal mobility device users” (8 January 2018), The Straits Times, online: <www.straitstimes.com/politics/parliament-average-of-three-accidents-a-month-involving-pedestrians-and-personal-mobility>.

[2] Shaffiq Idris Alkhatib, “Teen e-scooter rider pleads guilty in incident which caused pedestrian severe brain injuries” (13 June 2018), The Straits Times, online: <www.straitstimes.com/singapore/courts-crime/teen-e-scooter-rider-pleads-guilty-in-incident-which-caused-pedestrian-severe>.

[3] Desmond Ng & Kan Lau, “Why being hit by an e-scooter can be deadly – and a call to ban them from footpaths” (20 May 2018), Channel NewsAsia, online: <www.channelnewsasia.com/news/cnainsider/e-scooter-ban-footpaths-accidents-safety-registration-debate-10250946>.

[4] No 3 of 2017, Sing.

[5] Cap 276, 2004 Rev Ed Sing.

[6] S 251/2018 Sing.

[7] Rodney Tan, “It Is Time to Ban E-Scooter[s] in Singapore” (last updated 11 December 2018), ipetitions, online: <www.ipetitions.com/petition/it-is-time-to-ban-e-scooter-in-singapore>.

[8] Cap 224, 2008 Rev Ed Sing.

[9] [2018] SGHC 18; [2018] 4 SLR 813.

[10] For example, see supra, notes 1-3.

[11] Supra note 9 at [32].

[12] Ibid.

[13] Ibid.

[14] Ibid at [31]. The information is represented in table format in the PDF version of this article.

[15] Ibid at [25].

[16] Ibid.

[17] Ibid at [27].

[18] Ibid at [24].

[19] [2018] SGMC 56.

[20] Ibid at [23].

[21] Ibid at [20].

[22] Ibid at [24].

[23] [2018] SGMC 16.

[24] [2017] SGHC 176; [2017] 5 SLR 681.

[25] Ibid at [54].

[26] Ibid.

[27] Ibid at [55]. The information is represented in table format in the PDF version of this article.

[28] Supra note 23 at [38].

[29] Supra note 19 at [37].

[30] Ibid.

[31] Ibid at [2].

[32] Supra note 9 at [5].


The PDF version of this article is available for download here.

The Turf Club Articulation of Wrotham Park Damages: A Curious Kind of Compensation?

By Stephanie Ng Wenli*

I. INTRODUCTION

What happens when a negative covenant is breached, specific relief is not available, and no financial loss was suffered? Owing to the ingenuity of the common law, one can claim for Wrotham Park damages. Formulated by Brightman J in Wrotham Park Estate Co Ltd v Parkside Homes Ltd1 [Wrotham Park], Wrotham Park damages represent a hypothetical sum of money that might reasonably be demanded by the claimant as quid pro quo for releasing the defendant from the obligation breached (‘hypothetical bargain measure’).2 While Brightman J’s creation was admirably inventive, it also incited a wellspring of controversy in succeeding years.3 In particular, a great deal of ink has been spilt in determining the conceptual basis of Wrotham Park damages – are they compensatory or restitutionary?

The recent case of Turf Club Auto Emporium Pte Ltd v Yeo Boong Hua4 [Turf Club] sought to resolve this controversy.5 According to the SGCA, Wrotham Park damages are an established part of our contractual firmament, and may be characterised by three features. First, they are an “independent head” of damages.6 Second, they are “measured objectively” by simulating a hypothetical bargain between parties, and quantifying the award with reference to the defendant’s anticipated profits (as opposed to actual profits).7 Third, they are aimed at compensating the plaintiff for the “loss of the performance interest itself”,8 thereby making them compensatory and not restitutionary.9

The final point is the most controversial, and raises a central question that this article seeks to answer: Is the SGCA guilty of strong-arming Wrotham Park damages into a compensatory framework? Or is the decision a shining testament to the remedial flexibility of compensation? This article will show that the latter is the case. Going further, it will also explain why a compensatory account of Wrotham Park damages is nevertheless novel, and consider alternative accounts.

II. THE TEST DETERMINING THE AWARD OF WROTHAM PARK DAMAGES

Before dealing with the conceptual basis of Wrotham Park damages, it is critical to note the legal test that has to be satisfied before they will be awarded. According to the SGCA, Wrotham Park damages should only be awarded “in a specific and limited category of cases”,10 where the following three requirements are satisfied.11

(a) First, there must be a remedial lacuna, which arises when both orthodox compensatory damages and specific relief are unavailable, and yet “there is still a need to provide the plaintiff with a remedy to protect the plaintiff’s performance interest”.12

(b) Second, the obligation breached must be a negative covenant. This is because the hypothetical bargain measure underpinning Wrotham Park damages is most relevant and appropriate in cases involving negative covenants.13

(c) Third, the fiction of the hypothetical bargain cannot be taken too far. The court must be able “construct a hypothetical bargain between the parties in a rational and sensible manner”.14 This means that Wrotham Park damages will not be awarded in a case where “it would be irrational or totally unrealistic to expect the parties to bargain for the release of the relevant covenant, even on a hypothetical basis”.15 A clear example of this is when it is legally impermissible to negotiate for the release of the covenant.16

III. THE CONCEPTUAL GRID ON WHICH WROTHAM PARK DAMAGES HANG: MY LOSS OR YOUR GAIN?

To support its holding that Wrotham Park damages were compensatory in nature, the SGCA leveraged heavily on the concept of performance interest. The Wrotham Park measure was simply another tool in the court’s remedial arsenal that seeks to make good the plaintiff’s loss, thereby protecting his interest in contractual performance.17 What then, does performance interest mean?

A. Performance interest and the remedies that protect it

A good place to start is Friedmann’s seminal article, The Performance Interest in Contract Damages. It was duly cited by the SGCA in Turf Club,18 and is significant for a number of reasons. First, it established the plaintiff’s right to performance (and the defendant’s correlative duty to perform) as a fundamental aim of contract law.19

Second, it explained the remedial ways in which this right to performance is protected.20 Specific performance for instance, directly vindicates the right, with the plaintiff receiving exactly what he contracted for. In contrast, compensatory damages vindicate this right in economic terms, with the plaintiff receiving monetary compensation to the extent necessary to put him in the same position as if the contract had been performed.21

Third, it stressed the importance of distinguishing between rights and remedies.22 Indeed, it is easy to forget that the right to performance is almost never fully honoured at the remedial end. Compensatory damages—if awarded—are often cut back for one reason or another23 (see for example, the Ruxley reluctance to award cost of cure damages,24 or the discount applied when awarding loss of chance damages).25 This reveals how our compensatory remedies protect the plaintiff’s right to performance modestly at best. As such, the recognition of a measure of compensation as hypothetical (and one might say, fictitious) as Wrotham Park damages is nothing short of bold. It is therefore no surprise that the SGCA spent a great deal of time justifying and defending the compensatory nature of Wrotham Park damages. This will be discussed below.

B. The approach adopted: Wrotham Park damages as objective compensation

One of the perennial objections that the SGCA had to address was how Wrotham Park damages cannot be compensatory because the plaintiff did not suffer any identifiable loss for which compensation is warranted.26 The SGCA’s riposte was that the infringement of the plaintiff’s right to performance was itself a loss that merited compensation.27 In assessing the value of this lost right, the court will employ the hypothetical bargain measure. Crucially, the fact that such compensation is premised solely on the infringement of an abstract right to contract performance, without requiring the plaintiff to point to any subjective loss suffered, is what makes Wrotham Park damages so novel. Cunnington calls this objective compensation, which is distinct from subjective compensation. Its award is not based on any subjective loss identification, but on the objective valuation of the plaintiff’s right to performance.28 While this subjective-objective distinction to compensation was not expressly adopted in Turf Club, it is immensely useful in helping us understand why Wrotham Park compensation occupies such a special place in the landscape of contractual compensation.

When the law awards compensation for a breach, it is often taken for granted that such compensation is measured in subjective terms. This is why the plaintiff must prove “the fact of damage” before he can be compensated for it.29 Conventional compensation is subjective and therefore contingent on loss identification. In Turf Club however, the SGCA silently departed from this convention by grounding Wrotham Park compensation in objective terms instead. Such compensation would not flow from proving subjective loss, but from the objective infringement of performance interest.30 The significance of this shift cannot be overstated, as it boldly recognises a head of compensation that does away with loss identification.

However, this does not explain why the objective compensation account should be accepted over other accounts. One alternative is to persist in the compensatory analysis, but rationalise Wrotham Park damages as subjective compensation by creatively locating the loss in the lost opportunity to bargain for a release of the obligation breached.31 Another alternative is to relinquish the compensatory analysis altogether, and instead concede that Wrotham Park damages are restitutionary. The first alternative can be easily rejected – section C will show that such loss-based reasoning is too strained to make sense. In contrast, the second alternative does show some promise – this will be explained further in section D.

C. Alternative account 1: Wrotham Park damages as subjective compensation

The first alternative is to locate the plaintiff’s loss in the lost opportunity to bargain for a release of the obligation breached (i.e. ‘lost opportunity’ articulation).32 Unfortunately, this articulation runs into two problems. Firstly, it carries more than a whiff of artificiality. Such an articulation is constructed from a fictional narrative which casts the parties as willing negotiators, even though they may not actually have been willing to negotiate on the facts.33 It thus makes no sense to claim that there was a loss, because any ‘loss’ is entirely imaginary.

Secondly, close scrutiny reveals that this ‘lost opportunity’ articulation is not strictly a loss at all.34 A Wrotham Park loss is not a loss of future opportunity that may or may not materialise. Instead, it is a missed past opportunity that exists only in the hypothetical realm. In fact, one could even go as far to say that it was not so much lost as it was given up or foregone. The examples below illustrate this difference.

(1) Suppose P goes to a hairdresser (D) who offers the following service: In consideration of P donating a minimum length of hair (say, 5 inches) which D will then sell it to a wig manufacturer for a profit, he will waive any hairdressing charges that would otherwise apply. P enters into a contract with H, telling him that she is only willing to donate the minimum 5 inches, in return for the free haircut promised. However, D ends up cutting off over 15 inches in breach of contract, and proceeds to sell them for a good profit of $200. Assume also that D would have made a far lower profit of $50 had he only cut off 5 inches as promised. If the ‘lost opportunity’ articulation were recognised, P’s ‘loss’ would be the missed opportunity to demand from D a sum of money for cutting off an extra 10 inches of hair. This is what a missed opportunity to negotiate would look like.

(2) The facts remain the same. But suppose also that because of D’s breach, P is now left with a short bob that precludes her from participating in a beauty pageant, causing her to lose the chance to be crowned a beauty queen. This is what a loss of opportunity would look like.

Example (1) shows how there is no subjective loss at all in a Wrotham Park situation. This stands in contrast to example (2), where P’s subjective loss is the chance to become a beauty queen. It is thus submitted that the ‘lost opportunity’ articulation is less of a loss and more of a method of monetising the breached obligation as if it were a bargained-for contractual right that the defendant managed to obtain from the plaintiff. On the facts of example (1), we are valuing D’s breach by asking how much it would cost him if he were to bargain for the right to cut 10 more inches off P’s hair. This demonstrates how the Wrotham Park compensation that P receives does not flow from any loss, but from the above valuation exercise. In fact, this seems to be the underlying principle behind the SGCA’s decision to rationalise Wrotham Park damages as objective compensation for the infringement of the plaintiff’s right to performance – with this right being valued in terms of the amount the plaintiff would charge the defendant for releasing him from the obligation breached.35

D. Alternative account 2: Wrotham Park damages as restitutionary remedy

The other alternative is to rationalise Wrotham Park damages as gain-based restitution. Despite the academic support for the restitutionary account,36 the SGCA rejected it, stating that it is “unprincipled in so far as it implies that Wrotham Park damages should be available only where the defendant concerned derives a benefit from [his] breach of contract”. Accordingly, this is objectionable because it leaves an opening for a defendant to avoid making restitution on the basis that he did not make any gains from his breach.38

However, this objection assumes that the plaintiff’s restitutionary award can only be measured on a subjective basis, when it can also be measured on an objective basis.39 The concern that the defendant can avoid making restitution if he did not make any subjective gains no longer finds purchase under an objective approach, for he will still have to make restitution based on the objective gains he would have made as a result of his breach. What then, would be the objective gain made by a defendant in a Wrotham Park situation? Going back to example (1), this would be the expense saved by D from not having to bargain with P for the right to cut off an extra 10 inches of hair. In other words, the objective gain should relate to a saved negotiation expense.40 An objective restitutionary account that seeks to reverse the benefit gained by the defendant from saving himself a negotiation expense therefore proves to be very promising, as it explains many once puzzling features of Wrotham Park damages:

(a) It explains why Wrotham Park damages are calculated by reference to the defendant’s anticipated (and not actual) profits, as it concerned with objective (and not subjective) gains.

(b) It also explains why Wrotham Park damages are calculated by reference to a percentage of such anticipated profits. That percentage represents the expense that the defendant would have incurred in procuring a release from his contractual obligation, but which he saved because he chose to breach it instead.

This shows that a strong case could potentially be made for a restitutionary account of Wrotham Park damages. Unfortunately, English authorities have generally eschewed the restitutionary account.41 Turf Club shows that Singapore is following the same trend. Indeed, the other objections raised by the SCGA in rejecting the restitutionary account relate to contract law’s aversion to punishment,42 and the weight of past authority supporting a compensatory analysis.43 While it is hoped that future cases will examine the merits of a restitutionary account more satisfactorily, it seems that the rationalisation of Wrotham Park damages as objective compensation has been settled for now.

IV. CONCLUSION

In closing, this article has shown how Turf Club’s account of Wrotham Park damages as objective compensation is bold step forward, creating a novel head of compensation that does away with loss identification and premising it instead on the valuation of the performance interest. To that extent, Wrotham Park damages are, as the title suggests, a truly curious kind of compensation.


* LL.B. (Hons.), National University of Singapore.

[1] [1974] 1 WLR 798 [Wrotham Park].

[2] Ibid at 815. On the facts, this was assessed to be 5% of the profits that the defendants were expected to make from developing the land in breach of the negative covenant.

[3] See Andrew Burrows, “Are ‘Damages on the Wrotham Park Basis’ Compensatory, Restitutionary, or Neither?” in Djakhongir Saidov & Ralph Cunnington, eds, Current Themes in the Law of Contract Damages (Oxford: Hart Publishing, 2008) 165. See also David Pearce & Roger Halson, “Damages for Breach of Contract: Compensation, Restitution and Vindication” (2008) 28:1 Oxford J Leg Stud 73 [Pearce & Halson], where the authors observed the following trend at 91-92: “The judicial consensus appears to favour a compensatory analysis. Academics seem, on the whole, to prefer a restitutionary interpretation”.

[4] [2018] SGCA 44 [Turf Club].

[5] For a summary of the case, see Singapore Law Watch, “Supreme Court Note: Turf Club Auto Emporium Pte Ltd and others v Yeo Boong Hua and others and another appeal [2018] SGCA 44 (legal principles relating to the award of Wrotham Park damages)” (7 August 2018), online: <http://www.singaporelawwatch.sg/Headlines/supreme-court-note-turf-club-auto-emporium-pte-ltd-and-others-v-yeo-boong-hua-and-others-and-another-appeal-2018-sgca-44-legal-principles-relating-to-the-award-of-wrotham-park-damages>.

[6] Turf Club, supra note 4 at [150], [164], [286].

[7] Turf Club, supra note 4 at [199], [205], [247], [268].

[8] Ibid at [205], [268].

[9] Ibid at [193].

[10] Ibid at [215].

[11] Ibid at [217]. For a comprehensive case summary, see Singapore Law Watch, “Supreme Court Note: Turf Club Auto Emporium Pte Ltd and others v Yeo Boong Hua and others and another appeal [2018] SGCA 44 (legal principles relating to the award of Wrotham Park damages)” (7 August 2018), online: <http://www.singaporelawwatch.sg/Headlines/supreme-court-note-turf-club-auto-emporium-pte-ltd-and-others-v-yeo-boong-hua-and-others-and-another-appeal-2018-sgca-44-legal-principles-relating-to-the-award-of-wrotham-park-damages>.

[12] Turf Club, supra note 4 at [219].

[13] Ibid at [227].

[14] Ibid at [230].

[15] Ibid at [230].

[16] Ibid at [232].

[17] Ibid at [170], [190]. Indeed, this concords nicely with Pearce & Halson, supra note 3, where the authors argue that the purpose of contract damages is not only to indemnify loss caused by the breach, but also to ‘vindicate’ the contractual right. The latter explains certain awards such as Ruxley damages, the broad ground in Panatown, and Wrotham Park damages.

[18] Turf Club, supra note 4 at [170].

[19] Daniel Friedmann, “The Performance Interest in Contract Damages” (1995) 111 Law Q Rev 628 at 629 [Friedmann].

[20] Ibid at 629-630.

[21] The well-accepted compensatory principle finds its origins in Parke B’s classic formulation in Robinson v Harman, (1848) 1 Exch 850, which has since been approved by a spate of local cases. See PH Hydraulics & Engineering Pte Ltd v Airtrust (Hong Kong) Ltd and another appeal, [2017] 2 SLR 129, [2017] SGCA 26 at [62], and Turf Club, supra note 4 at [123]-[128].

[22] Friedmann, supra note 19 at 639.

[23] Mindy Chen-Wishart, “Specific Performance and Change of Mind” in Graham Virgo & Sarah Worthington, eds, Commercial Remedies: Resolving Controversies (Cambridge: Cambridge University Press, 2017) at 112.

[24] Ruxley Electronics and Construction Ltd v Forsyth, [1996] AC 344, endorsed locally in Yap Boon Keng Sonny v Pacific Prince International Pte Ltd, [2009] 1 SLR (R) 385, [2008] SGHC 161.

[25] Chaplin v Hicks, [1911] 2 KB 786.

[26] This objection was raised by the amicus curiae, Associate Professor Goh Yihan, at [205]. Also see Leo Zhi Wei, “Wrotham Park Damages Revisited” (February 2018), Gazette Feature, online: <https://lawgazette.com.sg/feature/wrotham-park-damages-revisited/> [Leo] who states that the case of Wrotham Park “is an example of an instance where the claimants were unable to prove any financial loss. In the absence of loss, it would be quite inaccurate to describe Wrotham Park damages as serving any compensatory function for the claimant at all”.

[27] Turf Club, supra note 4 at [205], [215]. This line of reasoning was analogised from the ‘user principle’ in the context of the tort of wrongful detention. Just as how the ‘user principle’ regards the invasion of property rights as itself a loss which yields proper recompense, so too the Wrotham Park doctrine regards the infringement of the right to performance as a loss that merits compensation (see [206]-[207]).

[28] Ralph Cunnington, “The Assessment of Gain-Based Damages for Breach of Contract” (2008) 71:4 Mod L Rev 559 at 562-563 [Cunnington].

[29] Robertson Quay Investment Pte Ltd v Steen Consultants Pte Ltd and Another, [2008] 2 SLR 623, [2008] SGCA 8 at [27], citing McGregor on Damages, 17th ed (Sweet & Maxwell: 2003) at para 8-001.

[30] Admittedly, judicial recourse to the performance interest for the purpose of justifying certain remedial responses is not new. For instance, this was the very basis on which the ‘Panatown broad ground’ was conceived (originating from Alfred McAlpine Construction Ltd v Panatown Ltd, [2000] 3 WLR 946).

[31] Robert J Sharpe & S M Waddams, “Damages for lost opportunity to bargain” (1982) 2:2 Oxford J Leg Stud 290 [Sharpe & Waddams], cited in Turf Club, supra note 4 at [144].

[32] Formulated by Sharpe & Waddams, supra note 31, and relied on in subsequent English cases like Jaggard v Sawyer, [1995] 1 WLR 269, and Gafford v Graham, (1998) 77 P & CR 73.

[33] Leo, supra note 26, Cunnington, supra note 28 at 562-563.

[34] This point was forcefully put in Pearce & Halson at 92: “The difficulty with characteri[s]ing the award as compensatory arises, not because the loss cannot be expressed in financial terms, but because there was no loss at all.” Cf Jill Poole, Textbook on Contract Law, 12th ed (Oxford: Oxford University Press, 2014) at 421-422.

[35] Cunnington, surpa note 28 at 564: “In the absence of a factual pecuniary loss, the [Wrotham Park] award places an objective value on the claimant’s right to performance—a right which has been infringed by the defendant—and the award requires the defendant to pay for the right infringed.”

[36] See Ralph Cunnington, “The Measure and Availability of Gain-Based Damages for Breach of Contract” in Djakhongir Saidov & Ralph Cunnington, eds, Contract Damages: Domestic and International Perspectives (Oxford: Hart Publishing, 2008), Craig Rotherham, “‘Wrotham Park Damages’ and Accounts of Profits: Compensation or Restitution?” (2008) LMCLQ 25 [Rotherham].

[37] Turf Club, supra note 4 at [200].

[38] Ibid, citing Yenty Lily (trading as Access International Services) v ACES System Development Pte Ltd, [2013] 1 SLR 577, [2012] SGHC 208 at [66].

[39] Cunnington, surpa note 28 at 565 explains the difference between the objective and subjective restitutionary account well.

[40] Lionel D Smith, “Disgorgement of the Profits of Breach of Contract: Property, Contract and ‘Efficient Breach’” (1994-1995) 24 Can Bus LJ 121 at 138.

[41] See Rotherham, supra note 36 where the author observed at 26 that the compensatory account of Wrotham Park damages is “presently enjoying something of a renaissance”.

[42] Turf Club, supra note 4 at [197].

[43] Turf Club, supra note 4 at [202].


The PDF version of this article is available for download here.

Pillars of Strength: NTUC Foodfare Co-operative v SIA Engineering

By Daniel Ang Wei En*

I. INTRODUCTION

The Singapore Court of Appeal’s recent judgment in NTUC Foodfare Co-operative v SIA Engineering1 [NTUC] shed light on the present Singapore position on the imposition of a duty of care in cases of negligence resulting in economic loss.

In NTUC, a driver had collided an airtug into a pillar supporting the floor which the claimant’s kiosk was situated on.2 It was undisputed that the airtug driver failed to keep a proper lookout, and that the kiosk itself was not materially damaged.3 Following the incident, the Building and Construction Authority closed the premises, and Changi Airport Group cut off the supply of electricity to the claimant’s unit.4 Correspondingly, the claimant claimed for: (i) damage to equipment resulting from disuse; (ii) loss of profits during closure; (iii) costs for rebuilding of the kiosk; and (iv) rental incurred during renovation of the kiosk.5

A key question that arose was whether the driver owed a duty of care to avert the pure economic loss suffered by the plaintiff. In this regard, the Court of Appeal’s judgment dealt with three important issues:

(a) The appropriate stage to consider issues of indeterminate liability;

(b) The test applicable to relational economic loss; and

(c) The assessment of physical proximity.

These will be considered below, in turn.

II. APPROPRIATE STAGE OF THE SPANDECK TEST TO CONSIDER INDETERMINATE LIABILITY

The Court of Appeal held that considerations of indeterminate liability are addressed by, and turn on, the findings on legal proximity within the first stage of the test set out in Spandeck Engineering v Defence Science & Technology Agency6 [Spandeck].7 The Court reasoned that since potential defendants must have had a sufficiently close and proximate relationship with the claimant, a finding of proximity necessarily limits the class of potential plaintiffs.8

The Court held that the proximity requirement addresses the concern of liability to an indeterminate class – here, it ensured that the driver was liable only for the pure economic loss suffered by the determinate class of business operators in the area affected by his airtug’s collision.9 Applying the proximity factor of knowledge, the Court of Appeal held that the driver knew that by driving a “powerful vehicle”,10 he could cause damage to structures in the area. Correspondingly, the kiosk operators who would suffer economic loss due to the damaged structures was limited to “a determinate class of persons”11 [emphasis in original] and confined to operators on the same floor as the driver.

Ostensibly, the concern of indeterminate liability is still a policy factor considered under the second stage of the Spandeck test. In considering the policy factors, the Court reiterated its finding (earlier in the proximity stage) that the proximity requirement limited the driver’s liability to a determinate class of claimants (business operators in the affected premises who suffered pure economic loss).12

III. THE APPLICABLE TEST FOR RELATIONAL ECONOMIC LOSS

The Court of Appeal held that the Spandeck test is the applicable test for imposing a duty of care in respect of relational economic loss. Although the issue of relational economic loss specifically had not been considered by the Singapore Courts before,13 the Court of Appeal arrived at this conclusion because of: (i) the doctrinal coherence accorded by the Spandeck test; and (ii) the lack of normative justifications to transpose foreign tests into the Spandeck test.

On the first reason, the Court of Appeal reaffirmed that the Spandeck test would be the “single test for a duty of care for all claims in negligence, regardless of the nature of the plaintiff’s loss”.14 On the contrary, distinguishing relational economic loss from other kinds of economic loss would be to “introduce an even finer distinction into the duty of care inquiry” than the previously rejected distinction between physical damage and economic loss.15

In respect of the second reason, after reviewing Australian and Canadian authorities, the Court of Appeal concluded that they did not show a compelling normative justification warranting a separate criteria, because: (i) such criteria has been strongly criticized;16 and (ii) its purpose of addressing indeterminate liability can be addressed by Spandeck’s proximity requirement.17 In fact, the Court of Appeal opined that the foreign authorities also contained elements of a “proximity-based analysis”.18

IV. THE ASSESSMENT OF PHYSICAL PROXIMITY

The Court of Appeal held that there was physical proximity between the Driver and the business operator. First, there was physical proximity in terms of the physical-spatial distance between the Driver’s operations and the affected premises.19 More importantly, the Driver’s operations were confined to a very restricted area which included the affected premises.20 The Court contrasted this with the lack of proximity between shopping mall tenants and a driver operating in a much wider public area who collided into a shopping mall.21 Ostensibly, such a driver would be indeterminately liable – possibly to every tenant in every shopping mall in which he passes.

V. CONCLUDING THOUGHTS

Despite insisting on coherence between the duties of care with respect to the various types of pure economic loss, the Court of Appeal’s application of the Spandeck test itself lacked theoretical neatness. By addressing the concern of indeterminate liability in tandem with legal proximity, the Court conflated the two by straddling two conceptually distinct stages.

While the inquiries of legal proximity and indeterminate liability may effectively lead to the same result of limiting the class of plaintiffs, the two are not analogous. Rather, the content of each inquiry is distinct. The former incrementally22 applies “substantive content … capable of being expressed in terms of legal principles” [emphasis added] to the instant factual matrix.23 However, the latter assesses public policy, possibly “involving value judgments which reflect differential weighing and balancing of competing moral claims and broad social welfare goals” [emphasis added].24

These approaches have been applied even in cases where, like NTUC, the same subject-matter was assessed at both stages of the Spandeck test. In Spandeck, the considerations of adhering to the parties’ contractual framework were assessed at both the proximity stage and the policy stage. Unlike NTUC however, in Spandeck, each stage had a different inquiry. At the proximity stage, the Court of Appeal in Spandeck considered it as part of the assumption of responsibility inquiry.25 In contrast, at the policy stage, the Court in Spandeck sought to avoid imposing “a parasitic duty unnecessary for the parties’ protection”.26

Instead, the Court of Appeal in NTUC conducted the same inquiry at both stages, risking the dangers of applying legal requirements at a Spandeck stage inappropriate for the inquiry. The Court of Appeal in Spandeck warned that “it would be better if the courts were to articulate [policy] concerns under the requirement of policy considerations, rather than subsume these concerns within the proximity requirement, which may then lead to an overall distortion of the legal test to determine the existence of a duty of care” [emphasis added].27 Although the Court of Appeal’s conflation in NTUC is readily justifiable on grounds of practicality, it might potentially result in confusing guidance for lower courts in the future.

Moreover, the effect of the Court of Appeal’s assessment of physical proximity in this case is rather concerning. The distinction drawn by the Court through its contrasting examples effectively reduces liability for defendants who operate in a large, undefined and changing area.28 This is counter-intuitive – from a risk-creation perspective, such defendants create larger risks, ostensibly supporting the imposition of a duty of care.

Additionally, at the proximity stage of the Spandeck test, the Court’s consideration of proximities (physical and causal) together with a proximity factor (knowledge) in NTUC follows the trend of the Court of Appeal flexibly applying the three proximities and proximity factors. This is consistent with the Court of Appeal’s expansion of recognised proximity factors in Anwar Patrick Adrian v Ng Chong & Hue LLC29, beyond assumption of responsibility and reliance, by interposing the knowledge factor within relational proximity.30

Moving forward, this decision clearly reinforces the Spandeck test as the defining test for the duty of care inquiry in negligence. Since its inception, the utility of the Spandeck test’s general application and its theoretical neatness have been pillars of strength supporting the test’s application. However, it remains to be seen whether the shifting of the Spandeck stages will, much like in this case, collapse these very pillars of strength that the Spandeck test was founded upon.


* LL.B. (Hons.) Candidate, National University of Singapore. I record a debt of gratitude to Wong Wen Jian (Judicial Associate, State Courts of Singapore) whose invaluable guidance has greatly benefited an earlier draft of this case note and my education in the law of torts. Any errors and infelicities are, necessarily, my own.

[1] [2018] SGCA 41.

[2] Ibid at [11].

[3] Ibid at [11]-[12].

[4] Ibid at [13]-[14].

[5] Ibid at 22.

[6] [2007] SGCA 37; [2007] 4 SLR(R) 100.

[7] Supra note 1, at [42]-[43].

[8] Ibid at [43].

[9] Ibid at [52].

[10] Ibid at [50].

[11] Ibid.

[12] Ibid at [54].

[13] Ibid at [59].

[14] Ibid at [60].

[15] Ibid.

[16] Ibid at [61].

[17] Ibid at [78].

[18] Ibid at [65].

[19] Ibid at [47].

[20] Ibid.

[21] Ibid.

[22] Supra note 6 at [82].

[23] Ibid at [80].

[24] Ibid at [85].

[25] Ibid at [108].

[26] Ibid at [101] and [114].

[27] Ibid at [85].

[28] See supra note 21, for more on the issue.

[29] [2014] SGCA 34; [2014] 3 SLR 761.

[30] Ibid at [148].


The PDF version of this article can be found here

Terrorism and the European Court of Human Rights

By Keith Jieren Thirumaran

I. INTRODUCTION

The Council of Europe currently consists of 47 European Countries.1 In order to join and remain a member of the Council of Europe,2 countries must ratify and adhere to the European Convention on Human Rights [Convention].3 Through the Convention, the European Court of Human Rights (“ECtHR”) is empowered to ensure that the Convention is adhered to4 as well as to develop binding5 case law to progress the interpretation of the Convention. The ECtHR interprets the Convention as a “living instrument”6 which has led to an expansive scope of its provisions. This article will examine the impact of developments in the ECtHR’s case law on governments and public officials in the context of combating terrorism. In particular, this article will examine the restrictions that the ECtHR has placed on parties to the Convention (“Member States”) under Articles 2, 3 and 6 of the Convention. It will be submitted subsequently that although restrictions on governments and public officials are generally necessary, the restrictions of the ECtHR are too far-reaching and unreasonable in the context of protecting the lives of innocent civilians.

II. RIGHTS AFFORDED UNDER THE CONVENTION

All humans have the right to life and this is enshrined in Article 2 of the Convention. Under Article 3 of the Convention, all humans also have the right to be free from torture as well as inhuman or degrading treatment or punishment. Terrorists are defined as people who use violence and intimidation to coerce governments and communities.7 These people commonly engage in unlawful activities that extend to the killing and torture of innocent civilians, thus depriving innocent civilians of these Convention rights.

Article 1 of the Convention provides that Member States must secure these rights and freedoms to everyone within their jurisdiction. This means that Member States must take measures to ensure that no individual is subjected to torture nor to inhuman or degrading treatment, whether committed by a public official or by private individuals such as terrorists.8 Similarly, Members must also take “preventive operational measures” to protect individuals whose lives are at risk from the acts of other individuals, such as terrorists.9

These are positive obligations placed on Member States and public officials to ensure that innocent civilians are not killed or tortured by anyone, including terrorists.10 They require Member States to take reasonable measures to prevent the killing11 or torture12 of anyone in cases where authorities had or ought to have had, at the material time, knowledge of a “real and immediate risk” of loss of life or torture.

However, these positive obligations are in addition to negative obligations placed on Member States not to kill or torture individuals within their jurisdiction, whether innocent civilian or terrorist.13

III. RESTRICTIONS ON NON-JUDICIALLY SANCTIONED STATE ACTIONS

A. Deprivation of Life

Article 2(2) of the Convention provides exceptions where a Member State is permitted to use force that might result in the deprivation of life.14 Under Article 2(2)(a), such force may be used “in the defence of any person from unlawful violence”. Such force must also have been “absolutely necessary” in order to achieve the aim in Article 2(2)(a)15 and must therefore be “strictly proportionate”.16

As Articles 2 and 3 are fundamental and basic values of Member States,17 the ECtHR subjects deprivations of life to careful scrutiny and will therefore consider both the actions of state agents who administer the force as well as surrounding circumstances such as the planning and control of the operation.18

The restriction on public officials using such force only when absolutely necessary is itself an uncontroversial restriction. An example demonstrating this necessity is the case of the innocent civilian who was shot dead by police officers on 22 July 2005 on board the London transport network because the public authorities had wrongly suspected that he was a terrorist.19 Although the civil case was settled by mediation,20 this case illustrates the need to hold public officials accountable for their counter-terrorism operations.

In most cases, the application of the test of “absolute necessity” (and its accompanying strict proportionality test) will be straightforward. The firing of guns directly at demonstrators21 and usage of high-explosive indiscriminate aerial fragmentation bombs in an area populated with innocent civilians are clearly more than absolutely necessary.22 However, in less straightforward cases, the manner of application of the test to the facts might result in a decision that places an unreasonable restriction on public officials, especially when applying strict proportionality.

In McCann v United Kingdom,23 4 soldiers shot dead 3 known terrorists in Gibraltar24 after they made movements that appeared as if they were attempting to detonate a bomb.25 It transpired that the terrorists were not armed and were only on a reconnaissance mission with the intention of eventually planting a bomb there.26 The ECtHR held that by not making sufficient allowances for the possibility that intelligence information could be wrong and by not preventing the terrorists from travelling into Gibraltar, the overall situation led to the killing of the terrorists which was therefore not absolutely necessary, violating Article 2.27 This controversial decision generated a strong political backlash in the UK against the ECtHR.28

It is submitted, in support of the minority judges, that the failure to make allowances for intelligence information being wrong was analysed by the majority judges with the benefit of hindsight.29 Both the majority30 and minority31 judges agreed that the authorities had incomplete information and had no choice but to formulate their operation on the basis of information available at that time. Difficult operational choices had to be made involving unpredictable human conduct.32 It must be recalled that the actions taken by the UK government must be judged based on the information available at the material time,33 a position that is akin to the approach under UK Domestic Criminal Law.34

Judges in the majority had earlier found that since the soldiers honestly believed, based on the information that they had, that shooting the suspects was necessary to prevent serious loss of life. The soldiers thus did not violate Article 2: “to hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and those of others”.35 This stands in stark contrast against the subsequent finding that the UK Government violated Article 2, especially since the latter had also honestly believed, based on the information they had, that shooting those terrorists were absolutely necessary to save the lives of innocent civilians.

The consequences of the intelligence information being correct are devastating and as such no responsible government would have allowed the risk of such a detonation.36 It is therefore submitted that the authorities were correct in proceeding on the worst-case scenario basis.37 Failing to do so would show a “reckless failure of concern for public safety”38 and a breach of the authorities’ duty to protect innocent civilians as well as their own military personnel.39

It is also submitted, in support of the minority judges, that it would not have been practicable for UK authorities to arrest and detain the terrorists at the border.40 The UK Government’s reason for not arresting the terrorists at the border was because there was insufficient evidence to warrant the detention and trial of the suspects.41 However, this was rejected by the majority.42 The result of the majority’s finding places an unreasonable restriction on public authorities because arresting and releasing terrorists at that stage in time would have alerted the terrorists to the readiness of the authorities.43 The risk of a successful renewed attack on innocent civilians would increase as a consequence.44 Furthermore, the UK Government had no option of preventive detention of suspected terrorists as the ECtHR had previously ruled that detention without trial would be a violation of Article 5 of the Convention.45 The incompatibility of preventive detention with the Convention, even in the context of terrorism, has subsequently been reinforced.46

As such, the ECtHR’s imposition of a test of strict proportionality in determining whether the force was “absolutely necessary” effectively leaves the UK government without any options to protect innocent civilians from terrorists. On the facts of McCann v United Kingdom, there would have been nothing the UK government could have done and they would have been forced to risk innocent lives.

By way of contrast, on the opposite end of the spectrum, the USA frequently engages in targeted killings of terrorists via drones and airstrikes, even on targets located in foreign countries.47 This itself is submitted to be too extreme an opposing view.

It is submitted that a middle ground should be adopted where the proportionality test is moderated to be more lenient, in line with general standards relating to private- or self-defence. Under UK Domestic Criminal Law, strict proportionality is not applied for these doctrines of defence because it is unrealistic to expect anyone to weigh the exact amount of force necessary for self-defence in the midst of a situation.48 This position is similar elsewhere because the proportionality of a response should not be weighed on “golden scales” with the “luxury of time and calmness to think about the possible courses of action to take”.49 The detached objectivity that is natural in courtrooms long after the incident has taken place is an inappropriate test for such proportionality.50

B. Torture, inhuman or degrading treatment

(1) Obtaining Information

Torture as well as inhuman or degrading treatment or punishment are widely accepted to be morally wrong and unacceptable behaviour. The issue here is whether there are circumstances where such behaviour can ever be justifiable. Much of this discourse tenders to moral and philosophical quandaries as opposed to legal matters. It is therefore unsurprising that there is no international consensus on this issue. As much academic ink has been spilled on this issue – most of it being non-legal and beyond the scope of this article – the following will only provide a brief overview of the contrasting positions at the risk of oversimplification.

Deontologists favour an absolute moral prohibition because of the essence of human dignity which prevents such actions, regardless of any possible disastrous costs of an absolute prohibition.51 A common illustration is to let a nuclear bomb go off in a city rather than getting the information needed to stop it.52 The Council of Europe and the ECtHR both adopt positions in favour of the deontologist view. The prohibition against torture, and inhuman or degrading treatment or punishment is an absolute prohibition.53 This is irrespective of the conduct of the person,54 and has no exceptions and can have no derogations, “even in the event of a public emergency threatening the life of the nation”.55 Even under difficult circumstances such as fighting organized terrorism and crime, violations of Article 3 are absolutely prohibited.56 Furthermore, a sufficiently real and immediate threat of conduct violating Article 3 may also result in a violation of Article 3.57 In addition, any physical force that has not been made strictly necessary by a suspect’s conduct may result in a violation of Article 3.58 In light of the absolute nature of the Article 3 right, judicial corporal punishment such as caning has also been ruled to violate Article 3, and therefore cannot be applied to any person59 regardless of the crime committed.60

Under this view, one must also consider the possibility of suspects confessing false information to stop being tortured. Furthermore, suspects may not always possess the information as believed and may not even be the correct persons to apprehend.61 Furthermore, opening the door to “some” torture might lead to a slippery slope as it is not possible to limit the boundary on torture, leading to more extensive torture.62 Lastly, torture is more heinous than operational killings because a suspect is particularly vulnerable when held in police custody and deprived of liberty.63 Where the suspect is already entirely under the public authorities’ control, the authorities must bear a duty to protect him or her.64

Consequentialists, on the other hand, acknowledge that there may be some circumstances where torture may be necessary for the greater good.65 An example of the consequentialist view is the USA which engages in conduct that would violate Article 3 of the Convention during some of its interrogations.66

Under this view, a common example is known as the “ticking bomb” scenario where information is needed urgently to diffuse a bomb to save lives and torture is the only method that can obtain the information.67 In such situations, at varying levels, consequentialists agree that torture would be necessary.68 Beyond this common argument, it should be noted that in one case where the interrogation was held in breach of Article 3, the authorities obtained a “considerable quantity of intelligence information, including the identification” of 700 terrorists and solved 85 unexplained crimes.69

(2) Obtaining Convictions

Where subsequent evidence is obtained as a result of information earlier obtained during treatment that violates Article 3 (torture, inhuman or degrading treatment), and if the evidence (resulting in a conviction) is a direct result of the violation, then it is automatically unfair to use the evidence.70 The reason for this is because allowing such evidence to be admitted would be an incentive for public authorities to continue violations.71. This only applies where the evidence had a bearing on a conviction, as opposed to reliance on other untainted evidence.72 This means that the focus of the ECtHR is on the unfairness of the violation in light of the absolute nature of Article 3, as opposed to other factors in other jurisdictions such as reliability,73 probative value74 or voluntariness.75

While hardly any objection is taken to this approach, caution must be taken by the ECtHR to ensure that conduct in alleged violation actually meets the high thresholds of “torture, inhuman or degrading” treatment. The reason for this is because in interrogations, “some discomfort has to be expected”76 and it should be borne in mind that “the police work in difficult circumstances” such that removing “all doubt of influence or fear” would mean that the police “would never be able to achieve anything”.77

IV. RESTIRCTIONS ON JUDICIALLY SANCTIONED STATE ACTIONS

The ECtHR has decided that Member States cannot extradite a criminal to a Non-Member State where there are substantial grounds to believe that there is a real risk of torture, inhuman or degrading treatment or punishment for the criminal.78 In light of the fact that judicial corporal punishment such as caning has been held to be prohibited by Article 3,79 Member States are unable to extradite terrorists to Non-Member States to face caning. The ECtHR subsequently extended this to include the death penalty and execution,80 such that Member States can no longer extradite criminals to Non-Member States to face the death penalty.81 The ECtHR has also expanded this to include extradition to a Non-Member State where a terrorist faces a de facto irreducible life sentence without parole.82 The ECtHR has made clear that these restrictions also prevent expulsions83 and even to the deportation of illegal immigrants that have snuck into the country.84 In one case where extradition was prohibited, the ECtHR has went so far as to say that the “serious threat to the community” does not diminish the risk of a terrorist suffering harm when deported.85

Leaving aside any potential diminution of deterrent effect from death penalties or caning, the implication of the ECtHR’s decisions is that Member States are no longer able to get rid of terrorists that were originally not within their jurisdiction. Furthermore, an extension of this would be that terrorists from Non-Member States might specially flee to seek refuge in Member States since they cannot be deported back to face the death penalty or judicial corporal punishment even if they entered the Member State illegally.

A possible workaround in recent times has been to ensure that the state requesting for extradition agrees not to impose judicial corporal punishment on the suspect.86 This can logically be extended to securing an agreement not to impose the death penalty as well. It remains, however, less than ideal. Apart from questions of sovereign equality or those of imposing of subjective values on other states, any Non-Member State is free to decide that it will not agree to the imposed terms for extradition, thus leaving the Member State potentially stuck with a terrorist. Furthermore, the ECtHR may not even be persuaded by the assurances provided by the state requesting for extradition if it finds that the foreign government is unable to adequately guarantee a freedom from Article 3 treatment.87

V. CONCLUSION

The sum effect of developments in the ECtHR’s case law is that governments and public officials in the Council of Europe are severely hampered from combating terrorism. Member States must fulfil a test of strict proportionality when making decisions relating to deprivations of life and are also unable to detain nor remove terrorists from their countries. These considerable restrictions place the lives of innocent civilians at significant risk and are therefore unreasonable in the context of fighting terrorism.

It is suggested that in analysing state behaviour in respect of terrorism, a useful analogy may be drawn from the opposing goals and values of Criminal Justice Systems. In the Criminal Justice System, a balance is normally struck somewhere along the spectrum between a model that primarily aims to suppress crime88 (the “Crime Control Model”) and a model that primarily seeks to protect an individual’s rights89 (the “Due Process Model”). When it comes to terrorism, many innocent lives are at stake. The severity of the risks involved mean that the appropriate balance required must be shifted towards the values of the Crime Control Model. It is thus submitted that the better way forward is to focus on suppressing terrorism, with the necessary compromise on some of the values of the Due Process Model. As such, primacy must be given to the protection of innocent lives with the necessary evil of watering down some of the rights in the Convention.


[1] Council of Europe, Statute of the Council of Europe, CETS No. 001 (1949) at Article 26 (as at May 2018).

[2] Ibid at Articles 3 and 8.

[3] Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No. 005 (1950), as amended by Protocols No. 11 and 14.

[4] Ibid at Article 19.

[5] Ibid at Article 46.

[6] Soering v United Kingdom [1989] ECHR 14 at [102].

[7] The Concise Oxford Dictionary of Current English, 9th Ed, sub verbo, “terrorist”.

[8] Z v United Kingdom [2001] ECHR 333 at [73]; A v United Kingdom [1998] ECHR 85 at [22].

[9] Osman v United Kingdom [1998] ECHR 101 at [115].

[10] Ibid.

[11] Ibid at [116]; See also, Edwards v United Kingdom [2002] ECHR 303 at [121].

[12] Z v United Kingdom [2001] ECHR 333 at [73].

[13] Supra note 9 at [115].

[14] McCann v United Kingdom [1995] ECHR 31 at [148].

[15] Ibid.

[16] Ibid at [149].

[17] Ibid at [147].

[18] Ibid at [150].

[19] Armani Da Silva v United Kingdom [2016] ECHR 314, at [12] and [37]–[38].

[20] Ibid at [142].

[21] Simsek v Turkey [2005] ECHR 546 at [108] and [112].

[22] Kerimova v Russia [2011] ECHR 744 at [253] and [257].

[23] Supra note 14.

[24] Ibid at [199].

[25] Ibid at [196] and [197].

[26] Ibid at [219].

[27] Ibid at [213].

[28] Peter Cumper, “When the State Kills – McCann and Others v United Kingdom”, (1995) 4 Nottingham LJ 207.

[29] Joint Dissenting Opinion, McCann v United Kingdom, [1995] ECHR 31 at [8].

[30] Supra note 14 at [193].

[31] Supra note 29 at [8]

[32] Supra note 9 at [116].

[33] Ibid; see also Edwards v United Kingdom, [2002] ECHR 303 at [121].

[34] Criminal Justice and Immigration Act 2008 (UK), c4, s76(3).

[35] Supra note 14 at [200].

[36] Supra note 29 at [9].

[37] Ibid at [13].

[38] Ibid.

[39] Supra note 14 at [192].

[40] Supra note 29 at [11].

[41] Supra note 15 at [204].

[42] Ibid at [205].

[43] Supra note 29 at [11].

[44] Ibid.

[45] Brogan v United Kingdom [1988] ECHR 24.

[46] A and others v Secretary of State for the Home Department [2004] UKHL 56; A and Others v Secretary of State for the Home Department [2009] ECHR 301.

[47] Philip Alston, “Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions”, (2010) United Nations, A/HRC/14/24/Add.6 at [18]-[22].

[48] Supra note 34 at s76(7)(a); Palmer v R [1971] AC 814 (Privy Council on Appeal from Jamaica).

[49] PP v Vijayakumar s/o Veeriah [2005] SGHC 221 at [52].

[50] Jai Dev v State of Punjab, AIR 1963 SC 612 (India) at 617.

[51] Robert J Homant et. al., ‘Is Torture Ever Justified – College Students’ Attitudes Toward Coercion/Torture’ (2008) 8 JIJIS at p 153.

[52] Ibid at p 153.

[53] Supra note 12 at [73]; Republic of Ireland v United Kingdom [1978] ECHR 1 at [163].

[54] Republic of Ireland v United Kingdom [1978] ECHR 1 at [163].

[55] Aksoy v Turkey [1996] ECHR 68 at [62]; Selcuk & Asker v Turkey [1998] ECHR 36 at [75].

[56] Ibid.

[57] Gafgen v Germany [2010] ECHR 759 at [91].

[58] Bouyid v Belgium [2015] ECHR 819 at [100].

[59] Tyrer v United Kingdom [1978] ECHR 2 at [35].

[60] Ibid at [34].

[61] Supra note 51 at p 154.

[62] Ibid.

[63] Ribitsch v Austria [1995] ECHR 55 at [36] and [38]; Bouyid v Belgium [2015] ECHR 819 at [100].

[64] Bouyid v Belgium [2015] ECHR 819 at [103] and [107].

[65] Supra note 51 at p 154.

[66] Department of Defense Joint Task Force 170 on Guantanamo Bay in Cuba, APO AE 09860, Declassified “Legal Brief on Proposed Counter-Resistance Strategies”, JTF170-SJA (31 October 2002).

[67] Supra note 51 at p 153.

[68] Ibid at p 154.

[69] Supra note 54 at [98].

[70] Ibid at [173]; Gocmen v Turkey [2006] ECHR 2003.

[71] Supra note 54 at [178].

[72] Ibid at [178]-[181] and [187].

[73] Poh Kay Keong v PP [1995] 3 SLR(R) 887 (Court of Appeal, Singapore) at [42].

[74] Muhammad bin Kadar v PP [2011] SGCA 32 at [53].

[75] Yeo See How v PP [1996] 2 SLR(R) 277 (Court of Appeal, Singapore) at [40].

[76] Ibid.

[77] Panya Martmontree v PP [1995] 2 SLR(R) 806 (Court of Appeal, Singapore) at [29].

[78] Supra note 6 at [91] and [111].

[79] Supra note 59 at [35].

[80] Al-Saadoon & Mufdhi v United Kingdom [2010] ECHR 282 at [120] and [137].

[81] AL (XW) v Russia [2015] ECHR 964 at [64].

[82] Trabelsi v Belgium [2014] ECHR 893 at [138] and [139].

[83] LM v Russia [2015] ECHR 908 at [126].

[84] Jabari v Turkey [2010] ECHR 369 at [42].

[85] Saadi v Italy [2008] ECHR 179.

[86] John Geddie and Robert Birsel (ed), “Singapore says won’t cane suspected bank robber if deported from UK”, (20 February 2018) Reuters World News, online: <https://www.reuters.com/article/us-singapore-bank-robbery/singapore-says-wont-cane-suspected-bank-robber-if-deported-from-uk-idUSKCN1G40Y9>; “StanChart robbery: Singapore agrees to UK request to not cane suspect if found guilty”, (20 February 2018) Channel News Asia, online: <https://www.channelnewsasia.com/news/singapore/stanchart-robbery-singapore-david-roach-uk-request-extradition-9974270>.

[87] Chahal v The United Kingdom [1996] ECHR 54 at [105].

[88] Herbert L Packer, The Limits of the Criminal (1968) Stanford University Press at p 159.

[89] Ibid at p 239.


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