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Leiden Law Cast #2: The role of the criminal defence lawyer with Dr M. Lochs

Leiden Law Cast is a podcast made by Leiden Law School, Leiden University, for everyone who wants to learn more about current legal issues.

Irem Çakir (L) and Hamza Duprée

We present information in a more ‘digestible’ form, shining a light on all the latest issues and science news. Two students from our faculty, Irem Çakir and Hamza Duprée, present the podcast. In each episode they ask a member of the academic staff at Leiden Law School about a topical legal issue.

Our second guest on Leiden Law Cast was Dr Marianne Lochs. In this episode, recorded from home due to the lockdown restrictions on 19 December 2021, we discussed the changing role of the criminal defence lawyer.

Marianne is currently a lecturer at the Institute of Criminal Law and Criminology at Leiden Law School, and has taught in the bachelor’s and master’s programmes since May 2020. She is a graduate of Leiden University. After moving to Leiden to study (a big change after spending her youth in a small village in Brabant), she joined the Leiden Student Choir and Orchestra Collegium Musicum where she played viola. During this period, she also worked at the Rechtswinkel (Legal Advice Centre), and was a registrar at the Court of The Hague.

Marianne Lochs

Marianne has good memories of her time as a criminal defence lawyer. She learnt a lot about the law in practice and also dealing with the other parties in proceedings. The contact with the client, in particular, is special. The accused person is in a difficult situation and sometimes has unrealistic expectations of the lawyer. Also, the balance between representing the interests of the accused, and maintaining professional distance, is a delicate one.

From the 1970s onwards, a clear trend can be seen in the professionalisation of Dutch criminal defence law practice, partly due to the increase in human rights treaties. As a consequence, the role, and so also the responsibility of the lawyer has increased significantly. On the one hand, this means that the defence has more rights, but on the other hand, polarisation has emerged in the courtroom.

Lack of understanding

Traditionally, the Netherlands has a moderate inquisitorial system in which the prosecutor has a magisterial role. This means that the prosecutor is obliged to collect not only incriminating but also exculpatory evidence for the suspect. In such a system, the focus of the defence lawyer is only on the interests of the accused (of course limited in this by disciplinary and criminal law). Although the criminal justice professionals have few problems with this, there is a lack of understanding about it in society.

In the public debate, therefore, the public responsibility of the lawyer is an issue. It is said that there is an expectation that the lawyer bears co-responsibility for a good trial. One question in this debate is whether the defence can abuse its rights, and whether it is bound to the principles of due process. Marianne argues that the public prosecutor is able to abuse his powers, but this is impossible by definition for the defence. In addition, there is a discrepancy between the scale of the problem and the solution put forward by politicians: in 2020 there were roughly 1.3 million lawsuits, but only 500 to 700 cases in which, for example, a challenge was requested.

Throwing a spanner in the works

Defence lawyers resigning from their duties, sometimes just before the trial was meant to start, is also mentioned as a way of throwing a spanner in the works. Marianne disagrees that this method is frequently used to frustrate court proceedings. First of all, this is a right that a lawyer has, not a power of the accused. Second, in many cases the reasons for doing so are of a different nature, for example in case of non-payment or an unbridgeable difference of opinion. There is also often a sincere belief that the defence is not possible in the way the proceedings are being conducted when the defence is withdrawn. In general, it is difficult to say whether attempts are being made to persuade the court to grant certain wishes, for example.

In a previously published essay, Marianne expressed her concerns about the growing imbalance between the increased responsibilities of the defence lawyer, and the lack of possibilities to meet them. Part of this problem is the current system of financed legal aid: the majority of criminal cases are done on the basis of legal aid. This entails that there is a limited (financed in part by the State) reimbursement for the work carried out. The limited financial resources means that there is limited time for a criminal case. The reluctance to review this is in line with statements made by Fred Teeven, former State Secretary at the Ministry of Security and Justice. His statement that the defence activity will be limited when there is not enough money, seems to reflect a more general opinion.

There are also problems when it comes to possibilities for investigations and hearing witnesses as a defence. The defence is very dependent on the Public Prosecution Service (OM) and the court for the collection of evidence. This contributes to the aforementioned imbalance.

Clash of opinions

Marianne says she is sympathetic towards an adversarial system in which many responsibilities lie with the defendant. The underlying theory is that the truth can best be reached via a ‘clash of opinions’. The main weakness in this system, though, is that the defence has far fewer means to have an investigation conducted. This leads to an unequal power struggle between prosecutor and defence. This inequality should be reduced through a system of funding. For this reason, Marianne does not believe that the adversarial system should be adopted in its entirety in the Netherlands.

That said, inspiration can be taken from such legal systems now that the balance between responsibilities and possibilities for the defence is missing in the Netherlands. She suggests that in all cases, the defence should be given the opportunity to view the case file as early in proceedings as possible. The defence would then be in a better position to make an inventory of investigation wishes and in that way enter into a discussion about these with the OM.

In addition, there should be more opportunities for the defence to make use of experts. Much expertise on pathology and ballistics is currently in the hands of the Netherlands Forensic Institute (NFI). The services of the NFI are currently only accessible to the judiciary, and thus difficult to use for the defence.

Marianne also suggests that it would be a good idea for the OM to include unused materials in the case file. Such an arrangement, taken from English criminal procedure, compensates the inequality between prosecution and defence. This is needed because in the Netherlands, the OM has the exclusive authority to compose the case file.

Finally, Marianne is critical of the bill concerning the dual counsel. This example of incidental politics concerns the following: in cases where the suspect is being kept in the Extra Secure Detention Centre, two counsels would have to be deployed. One would tell on the other if there was the risk of crossing a disciplinary or criminal line. This draconian measure is out of all proportion and relates to the one-off, yet serious, incident in which Ridouan Taghi's counsel is suspected of violating both serious disciplinary and criminal standards.

The proposed dual counsel measure would jeopardise the trust between the lawyers and the suspect, thus preventing an effective defence. It would, in addition, push up the cost of legal aid even further, something that is already a thorny issue.

Marianne closes with the customary wise words. She paraphrases Mahatma Gandhi: the level of a society’s civilisation can be gauged by its compassion for animals. She believes we can take from this that only when we have compassion for those who are weaker and unable to defend themselves, can we feel true compassion for our fellow beings. What we sometimes tend to forget in serious cases, is that the accused is the weaker party in the proceedings who has to defend himself against the accusing, mighty government. It is important to always be aware of this weaker role.

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