Introduction
Court proceedings have become increasingly digital since the Covid-19 pandemic. Many courts around the world are experimenting with virtual or remote hearings, including in criminal cases. Videoconferencing has also enabled fast(er) implementation of other digital solutions, such as digital document exchange, during the Covid pandemic. As a result, virtual justice is part of a broader movement to normalise digitalised communication within criminal proceedings.
The literature on remote justice mostly examines how videoconferencing or remote hearings affect courtroom communication. Studies have focused, for instance, on the challenges to effective participation of defendants in virtual hearings,1 or on the possible effects on the judicial roles, and judicial perceptions of evidence and decision-making.2 However, very few studies so far have focused on the role of the defence lawyer in the context of virtual hearings, and of digitalised justice more broadly.3 Furthermore, few studies have examined the challenges to the position and participation of criminal suspects that arise from (related) aspects of digitalised communications in criminal proceedings other than the use of videoconferencing at trial.
The article examines these aspects in the context of Dutch post-pandemic criminal proceedings. This paper aims to answer the following question: ‘How has the intensified digitalisation of Dutch criminal proceedings (including but not limited to videoconferencing) following the Covid-19 pandemic affected legally represented defendants’ access to justice?’ The use of videoconferencing or other digital solutions in Dutch criminal justice post-pandemic has not yet been thoroughly researched. Nevertheless, based on interviews with Dutch lawyers conducted by the author, three main findings emerge. First, videoconferencing technologies in criminal court proceedings continue to be used post-pandemic, albeit on a smaller scale. Second, videoconferencing is used differently by different courts. Thirdly, the pandemic has had other consequences beyond the rising use of videoconferencing; namely, digital document exchange and digital communication with courts and other officials has become a norm. The purpose of this article is to assess how these developments might affect the role of defence lawyers and the access to justice for criminal suspects.
The article begins with setting out the methodology (Section 1) and the background for this study (Section 2), namely the existing regulations on digitalised criminal proceedings and the lawyers’ role in such proceedings. Section 3 discusses the findings of my own empirical study, supported with findings from other related empirical research, grouped around two main themes: access to the information in the case file and to the relevant officials; and the lawyers’ dilemmas related to their own or their clients’ remote participation. Where possible and appropriate, the findings are contrasted with the findings of my empirical research conducted before the pandemic to illustrate relevant changes. Section 4 analyses these developments in the context of criminal suspects’ access to justice. The article concludes with recommendations, particularly to the lawyers’ regulatory bodies, to address the new issues and dilemma’s stemming from the need to provide legal representation in the context of increasingly digitalised proceedings.
1. Methodology of the Empirical Study
This article is based on the findings of a broader qualitative research project, which sought to examine the impact of digitalisation of criminal proceedings post-Covid 19 pandemic on the professional role of criminal defence lawyers. This research builds upon the earlier research project ‘Consequences of COVID-19 for the judiciary and vulnerable litigants: an investigation into measures and the position of litigants within criminal, civil youth protection and immigration law’, to which the author has contributed.4
In the current project, I have conducted semi-structured qualitative interviews with 20 Dutch criminal defence lawyers working in different judicial districts. Also, different types of criminal practice (e.g. solo practitioners; lawyers working for specialised criminal defence firms; and lawyers working for generalist firms) and different levels of experience (from 1 year to 24 years’ experience) were represented. The interviews were conducted in April-June 2023. The interview consisted mostly of open questions and focused on two broad themes: the digitalisation of the criminal proceedings and their impact on the lawyer’s role, and the digitalisation of the lawyers’ own practice. This article mostly reports on findings on the first of these two topics. Interviews were conducted online via Teams, most interviews were audiovisually recorded and simultaneously transcribed. Interviews lasted from 35 minutes to 1,5 hours. They were thematically coded using Atlas.ti software.
Interviewing practitioners is a commonly accepted method to address exploratory research questions. At the same time, using interviews as a sole method of generating information about what happens or what people do, has certain limitations, which should be kept in mind when designing the study and interpreting the findings.5 Oftentimes, individuals misrepresent information due to memory issues or because they wish to present themselves in a favourable light, especially when discussing their own actions. As reported in earlier studies, criminal defence lawyers, for instance, tend to represent themselves as zealous (defending their clients fearlessly, actively and assertively) and client-centred (i.e. being primarily motivated by the interest of their clients).6 This self-representation may not always correspond to the image that these same lawyers project to the researchers.7
The lack of observational data led me to be cautious when deriving information about ‘what commonly happens (or does not happen)’ based on my interview findings. But it was sometimes possible, with some degree of certainty, to determine, for example, what other criminal justice actors (judges, police or prosecutors) do, or ‘sometimes’ do, due to the information being repeated in several interviews or in other sources (e.g. earlier empirical studies). Also, lawyers’ ‘admissions’ of doing something that (implicitly) goes against the ideal image of a zealous and client-centred advocate can be viewed as rather credible. However, the study did not aim at making judgements on the quality of lawyers’ work. Firstly, I used interview data to discern dilemmas and (ethical) tensions arising from digitalisation related to the lawyers’ professional role. Interviewing is a well-recognised method to research ethical dilemmas of lawyers.8 Secondly, I analysed the data to determine what factors lawyers consider relevant when taking certain decisions, for example whether to attend a hearing in person or virtually. Qualitative interviewing is likewise widely used to explore decision-making in the legal field.9
To illustrate and analyse changes in comparison with the pre-pandemic situation, the study refers to the earlier empirical research conducted by the author in the framework of her PhD.10 In this study, 32 criminal defence lawyers were interviewed, and participant observation was conducted at police stations, courts, and lawyers’ offices in the period between 2011 and 2014. Although the particular focus of the study was legal assistance at police stations, the study has also yielded rich information on the practice of criminal defence lawyering and of criminal proceedings in general, including the extent of digitalisation of said practices.
2. The Background to the Study: Digitalisation Before and After the Pandemic
On 17 March 2020, following the national lockdown as the consequence of the Covid-19 pandemic, all court houses had been closed.11 Only the ‘most urgent cases’ such as for instance case of detained suspects who had to be brought before the judge to review their detention, went on, often remotely or in a hybrid form.12 At that moment, the Dutch criminal justice system was not ready for turning into the remote mode.13
However, adjustments had been made quickly, and already in early to mid-April courts and detention facilities were equipped with functional videoconferencing facilities.14 Two months later, when some criminal cases began to be processed physically in courts again,15 detained suspects regularly appeared remotely via a videolink.16 Initially Skype for Business had been used, and later Cisco Meeting Server and, from 1 December 2021, MS Teams.17 These choices were made because lawyers and other parties did not need an account to log into a hearing.18 Preparatory hearings and other hearings outside of the main trial, or hearings in the so-called ‘very speedy’ (supersnelrecht) cases were as a rule conducted remotely.19 During the Covid-pandemic, cases involving violations of pandemic-related restrictions were typically categorized as ‘very speedy’ and therefore dealt with remotely. The special Covid-related measures were originally meant to apply until September 2020,20 but they eventually lasted until 1 February 2022.21
Next to videoconferencing, the Covid crisis has necessitated conducting all communications and exchanging documents digitally. Communication with courts and the Public Prosecution Service via fax has been common practice before the Covid crisis. In March 2020, other solutions had to be sought, since lawyers, judges or prosecutors did not have fax machines at home.22 The application Veilig Mailen was quickly put in place, developed on a platform called Zivver, which has since been extended to other areas than criminal law. 23 For example, it is now also being used by the Immigration and Naturalisation Service (IND) to communicate with lawyers. Although the implementation of Veilig Mailen was not without issues,24 the Council of Judiciary had announced that fax communications would be replaced by Veilig Mailen by February 2022 as the telephone provider had stopped supporting fax services.25
As to obtaining digital access to the case file, this had already been possible before March 2020, although it was not mandatory in criminal cases.26 Yet, the Council for the Judiciary estimated that in about 80% of criminal cases in courts of first instance exchanges of documents took place digitally already before the Covid crisis. According to the Council, all procedures in lower-level courts before a single judge were conducted digitally.27 However, this was (by far) not the case with regard to the case documents that lawyers receive from the police or the Public Prosecutor Office. There were no arrangements in place before the pandemic for providing lawyers with digital access to case documents. Often, documents were still provided physically, for instance when lawyers assisted clients at police stations. Following the Covid lockdown, measures were taken to ensure (better) digital access to the case documents for lawyers by courts, but also by police and the Public Prosecutor Office. In courts, the application MijnStrafdossier for criminal defence lawyers, a common initiative of the Council for the Judiciary, Legal Aid Board and the Public Prosecution Service, has already been implemented in 2014.28 The application was gradually extended to include new types of criminal cases and new features (e.g. the opportunity for lawyers to introduce requests or motions).29 Since 2021, also some of the police case files in the so-called ‘ASAP cases’ (‘less serious’ cases in which a disposal is sought to be achieved within the first 3–7 days following the arrest and interrogation of the suspect at police station) were included in the MijnStrafdossier.30
Overall, all lawyers interviewed for this study agreed that in the last years, digital access to the case file and digital communications (or communications via apps) with courts and other institutions, and with the relevant officials, have become the norm. Exchange of physical documents or copies has become a rare exception. This is strikingly different from the pre-pandemic period. At that time, paper case files and fax communications were a norm, and digital access to case files or e-mail communications with the respective institutions were rather exceptional. Also, all interviewed lawyers (including an apprentice lawyer who had worked only one year in criminal law) have had experience with online or hybrid hearings, either at the court or at the Public Prosecution Service. Such experiences would have been very rare some five or ten years ago.
The digitalisation process was in motion long before the Covid pandemic, but it has accelerated by the measures taken in response. Videoconferencing regulations were already in place before the pandemic, for example.31 Nevertheless, it had been used relatively rarely, mainly for interviewing witnesses abroad in the context of international cooperation. The use of videoconferencing has, however, significantly increased during and after the pandemic. This is also reflected in the gradual expansion of the scope of the respective regulations (Besluit videoconferentie).32 While one of the early regulations contained a list of exceptions (e.g. related to certain types of cases or categories of suspects),33 the version adopted after 25 March 2020, and the current version of 25 November 2022 no longer contain most of these exceptions. The use of videoconferencing is thus allowed in all criminal cases, except for when a person to be heard via a videolink has a serious visual or hearing impairment. Using videoconferencing is a decision made by the judge. The suspect’s consent is required to appear via a videolink in remand detention review hearings,34 and in trials before a panel of three judges, which concern cases where the public prosecutor calls for a sentence of more than one year of imprisonment.35 The consent requirement can however be foregone, where the judge believes that suspect’s attendance via a videolink is necessary in the interests of security of trial participants.36
Although the scope of the respective regulations had been expanded, it is unknown to what extent videoconferencing is used in practice by various courts. This is currently being researched by our group as a follow up to the previously mentioned research project ‘‘Consequences of COVID-19 for the judiciary and vulnerable litigants: an investigation into measures and the position of litigants within criminal, civil youth protection and immigration law’.37 Earlier research has reported that judges were reluctant to hear suspects via a videolink, especially during ‘main’ (trial) hearings.38 This was also confirmed by lawyers in this research. However, lawyers also mentioned cases (which presumably are very rare), where detained suspects were heard by videolink for ‘exceptional’ reasons, for instance because it was impossible to transport them to the court on that day,39 or on special request from a suspect.40
3. Criminal Defence Lawyering: Opportunities and Challenges Brought by Digitalisation
Earlier research, including one study to which the author had contributed, has focused on the obstacles to the lawyer-client communication during remote (or hybrid) hearings.41 When the suspect participates in a hearing from the detention facility via a videolink, and the lawyer is present in court, or attends via a videolink from their office or from home, it is usually impossible for the suspect to confer with the client confidentially.42 This problem was also commonly mentioned in the interviews conducted for this study. A (partial) solution could be to speak with the client before the hearing, however this is not always possible in practice. An additional visit to the detention facility, which may be located far from the lawyer’s office is not always ‘financially justified’. In the words of one lawyer, who practices in the North of the country, speaking about attending one of the women’s detention facilities: ‘it takes me three hours to get there, and three hours to get back!’.43 Given that detained suspects have no access to mobile phones, lawyers cannot call their clients directly, but they can leave a request at the detention facility to call them back. This can be problematic, especially when the lawyer does not know the client well, and even more problematic when the client does not speak Dutch. The court, on the other hand, expects the lawyer to find out the client’s preferences and inform the court about them. This can be demonstrated by the following quote:
I can’t call them [my detained clients – A.P.] myself. That is sometimes difficult, and here is a very concrete example: I will have a detention review hearing next Wednesday, he [my client – A.P.] had already been convicted in an earlier case, with an appeal pending, and so I think [sic! – A.P.]: ‘We don’t need to be present there in person, because the detention will definitely be prolonged anyway.’ That is a foreign client, who is detained in Vught [a facility with extra security arrangements – A.P.]. I can’t just go there like that [to discuss this]. He doesn’t call me back in response to a callback request, and I don’t know if that’s because he hasn’t received my message, or because he doesn’t speak Dutch, but I can’t get hold of him. In the meantime, the court wants to know from me whether the client wants to be present in person, but I actually don’t know. They would normally just bring the suspect to court, but here the judge prefers a remote hearing.44
When questioned about what they will do next, the lawyer suggested that they would tell the judge that the hearing must be postponed because they were not able to confer with the client. It may be however that other lawyers would agree to their client attending remotely in a similar situation, especially because the lawyer themselves believes that remote attendance would be preferable.
A related dilemma experienced by lawyers and widely reported in literature is where to be present physically, when a (court) hearing is conducted in a hybrid form with suspects joining via a videolink from a detention facility. Should the lawyer then be present in the courtroom together with the judge and the prosecutor, or in the detention facility together with the client? In previous research, many lawyers reported that they would prefer to be present in court, because (allegedly) they believed that judges would perceive lawyers as more persuasive when the latter are present live, which would eventually benefit their clients.45 This study, however, revealed that the lawyers’ decision-making about whether to attend from the detention facility or from the court is more nuanced. Apart from the interest of the client, other factors appeared to be relevant too, such as the travel distance towards the detention facility, financial aspects, or other engagements that the lawyer has on that day. For instance, several lawyers said that they would not travel to the detention facility, if they also have a court hearing in another case on the same day. Also, lawyers’ familiarity with their clients played a role: one lawyer reported feeling more confident to ‘leave’ their client alone once they knew him or her well enough.
Thus, lawyers seemed to resolve the dilemma concerning whether to be present in the courtroom or next to one’s client, when the client participates via a videolink, by simultaneously employing two types of arguments: idealistic, or based on the best interests of the client, and pragmatic, or based on the lawyer’s self-interest. This is in line with what Tata described as ‘ethical indeterminacy’ in criminal defence work. He suggested that when faced with similar ethical dilemmas, lawyers strive to find solutions which are both personally advantageous to them, and which would not irrevocably harm their clients’ interests.46
However, this article focuses on findings that have not been widely discussed in the literature. In particular, these relate to the following broad themes: access to information in the case file and to relevant officials; and other dilemmas associated with remote (hybrid) hearings rather than physical appearances.
3.1. Access to the case file and the relevant officials
As mentioned in Section 2, all interviewed lawyers reported that digital exchange of documents and digital communication with the relevant officials has become the norm in the recent years. This was described as a (very) positive development. Particularly the developments related to the provision of digital documents at the early (pre-trial) stages of the proceedings were highlighted. In the words of one lawyer:
I almost always make a so-called ‘Article 30’ request to the public prosecutor after the first police interrogation [request of access to the police case file under art. 30 of the Dutch Code of Criminal Procedure – A.P.]. A suspect has the right to inspect the documents from the moment of interrogation. Normally that took weeks, four or six weeks afterwards, because the prosecutor had to request documents from the police, and then documents had to be sent by mail. And that’s much faster now. Yes, the other day I even had it within one day. That I’ve never experienced before, and that can only be because now everything is digital. So that’s a very positive development.47
According to other lawyers, access to the documents and to the respective officials has improved in recent years, although the degree of access to police files varies according to the judicial district. While these processes had been in motion well before the Covid pandemic (one lawyer, for instance, referred to the last seven years or so), they appear to have been accelerated afterward. As one lawyer has put it:
Yes, I have to say that police have only just now started sharing files digitally with lawyers here [in this judicial district – A.P.] and again not in all cases. Or, for example, the electronic signing of interrogation transcripts by suspects [according to Dutch regulations, suspects are invited to sign the interrogation transcript to confirm its accuracy – A.P.], that works very well, because then you can just read through the statement on a screen with the client, and they sign it immediately. And furthermore, I see it mainly with the ASAP procedures, that you can quite easily get the case documents, because if the public prosecutor wants to settle the case immediately, then of course you [a lawyer – A.P.] also must give an opinion on whether the suspect should agree to the settlement, and so then you get the documents much faster.48
Overall, there seemed to be a striking difference with the situation that existed before 2014 when I conducted the fieldwork for my PhD.49 One year after the regulation requiring prosecutors to provide lawyers with early access to case files entered into force, 50 it was the ‘norm’ that lawyers only obtained access at the time of arraignment. This was three days after their initial arrest and interrogation, when detained suspects were presented before the judge to determine the legality of arrest and further pre-trial detention.51 If however, a suspect was not detained pre-trial, access to the case could be provided weeks after the suspect’s first meeting with the lawyer and interrogation(s) at the police station. In my earlier research, I found that the lack of access to the case file was a major obstacle towards effective defence at the early procedural stages. Namely, it hindered not only the lawyer’s ability to play an active role vis-à-vis the authorities and during suspect interrogations, but also their ability to provide meaningful advice on the procedural strategy and to build a relationship of trust with their clients.
The lawyers interviewed for this study also noted that the accessibility of the respective officials (police, public prosecutors, and their assistants and court clerks) has significantly improved in the last years. This seemed to be the case for all lawyers interviewed in this study, although some remarked that this was due to the ‘particularly trusting relationship’ with the officials in their districts due to the small size, and that ‘it might be different’ e.g.in certain large cities, for example. According to the lawyers, they were able to obtain cell-phone numbers of the officials responsible for the case, and communication sometimes took place via WhatsApp.
For example, one lawyer said:
Yes, that’s a small, relatively small region. You all know each other. And I don’t know why the court clerk is apping, but I like it very much. If you can’t answer, he could leave a voicemail, but if you are in a court hearing, you can’t listen to your voicemail. And an email is also nice, but an app yes, I really like that, it also goes faster.52
However, lawyers that worked in larger districts also shared similar experiences. One lawyer described their experience in communicating with the police as follows:
What I notice is that the police are getting better and better at communicating via cell-phone, in the sense that 5 years ago they used to call you anonymously from a central police number, and then you could never call them back, nowadays they also very often share cell-phone numbers. You can use these numbers to coordinate things about, huh, what time are they going to interrogate the suspect, or is more information already available on a certain matter? That’s going very well. Here [in this district – A.P.] we have what they call the coordinator of the suspects’ processing team. I also have a direct number of the detention complex. They can transfer me directly to the detectives, and I also have a direct phone number of the detectives’ department. And there too we have a direct line, which is available until ten o’clock in the evening and that goes very well, so not a bad word about that either.53
This differs from the findings of my earlier research, where the interviewed lawyers reported many difficulties in obtaining access to the relevant officials. On the one hand, shorter communication lines might be an indication of growing trust towards and acceptance of lawyers as ‘insiders’ by other procedural actors (particularly, police and prosecutors) once they have gotten used to the lawyers’ presence.54 On the other hand, the experience of having to work together, and to find mutually workable solutions during the Covid lockdowns, may have contributed to the greater trust that seems to be shown towards defence lawyers.
Despite the overall positive experiences with obtaining access to digital files, some possible tensions were also reported. First, lawyers are still not given access to the case file no later than the first suspect interrogation by the police as the law seems to require,55 but only sometime after the first interrogation. This means that lawyers still have very little information when providing advice to their clients at police stations (which seems to be increasingly given by telephone, see Section 3.2 below).
Second, since suspect interrogation transcripts are no longer provided in paper form as they were in the past, the suspect and lawyer must read them from the lawyer’s telephone screen. This is not optimal for suspects, many of whom already have difficulty understanding the contents of interrogation records, even when they are shared on paper.
Third, some lawyers noted that sometimes (additional) documents to the case file are uploaded late: for instance, on a Friday afternoon, when a hearing is scheduled for Monday. This seems to relate especially to particular types of documents, such as the civil law claim of the victim. As a result, lawyers no longer have time to discuss the content of the document with their clients, or even to familiarise themselves with it. However, in the fast-paced digitalized era a presumption seems to exist, as one lawyer has remarked, that people should be able to process digital information faster, than the information that is given on paper. Furthermore, due to the current prominence of efficiency concerns in the judiciary,56 judges might be reluctant to adjourn hearings to grant the defence more time to familiarize with the contents, when the case file had already been shared digitally. For example, when asked what they would do if some documents on the case file were provided just before the hearing, one lawyer replied:
If I have a court hearing, then I always check the day before in the late afternoon or in the evening if any new documents are uploaded. And then I can quickly go through them during the hearing. And some documents are more… it is of course different if there comes an important document, and your client is not there and you couldn’t discuss it with him and it makes a big deal for the case. Then of course you can ask for an adjournment. But this depends very much on… Judges of course do not wish to adjourn the case just like that… Look, if there is a new witness statement that is directly relevant to the accusation. Then maybe this is a reason to ask for an adjournment, yeah…57
Sometimes lawyers would not receive case documents in advance because of the errors made when uploading them to the MijnStrafdossier app from the internal systems of courts or of the Public Prosecution Service. The same lawyer as quoted above, for instance, said:
And nowadays it often happens that the court and the Public Prosecution Service have some documents, but lawyers do not. They work with other systems, so it happens too often recently that documents are not shared with the lawyer. We talked about that in our app group of criminal defence lawyers. Yes, you know, the lawyers have another portal, and then I think yes, then sometimes something goes wrong. But I also always improvise when some documents are introduced in a hearing [that were not attached to the case file – A.P.], because that is also the way it [the exercise of criminal defence – A.P.] should be. Improvising is also a sometimes part of it. And of course, it also depends a bit, imagine, it has already been sent to the Public Prosecution Service three days earlier and you will only receive it at the hearing. That’s a bad thing, of course.
3.2. Dilemmas related to remote (hybrid) participation in police procedures and court hearings
As mentioned earlier, literature on remote justice mostly refers to lawyers’ dilemmas related to the attendance of remote (court) hearings. However, the very first dilemma that lawyers face when accepting a new criminal case is often whether to be present physically at the police station to assist their (newly assigned) client in person, or to do it remotely.
Before the Covid-pandemic, remote assistance at a police station was quite rare. In my earlier research, I have only come across a few occasions of telephonic legal advice and representation during police interrogations. However, during the Covid pandemic, many more facilities were installed at police stations to enable video- or usually telephonic advice. In some districts, videoconferencing facilities had already been in place due to the ongoing pilots with police station legal assistance via a videolink.
Lawyers interviewed for this study have confirmed that in recent years digital or telephonic advice at police stations was provided more commonly than before the pandemic. One lawyer even went as far as saying that from what they know, police station advice was ‘standardly’ provided by video or telephone in certain large cities. There was no agreement about whether this should be seen as a positive or a negative development. Some lawyers spoke very negatively about ‘other lawyers’ who can manage several appointments on a duty day by advising their clients and attending interrogations remotely. Other lawyer, on the contrary, described it as a (very) positive development, especially because according to them, facilities were put in place to enable confidential communications with their clients. These lawyers mentioned that they themselves would prefer to provide remote advice if they had multiple police station appointments or a court hearing on the given day.
Lawyers cited different, sometimes conflicting types of considerations when deciding whether to assist clients detained at police stations in person or remotely. One lawyer for example first said that remote assistance should be provided only in ‘less serious’ cases; but has later talked about the fact that in their district, detention cells for offenders of sexual crimes are located too far away from the courthouse, which would justify remote assistance. Most lawyers drew a line between ‘repeat’ clients who they knew well, and new clients, with whom ‘a trusted relationship’ still had to be built. Minors, suspects with mental health or cognitive development issues, and foreigners not speaking the Dutch language, were cited as examples of types of suspects for which lawyers would consider being present in person.
These considerations, however, were weighed against more practical concerns, such as the travel distance, or the timing when the lawyers were notified about the case (some noted that if they were notified too late, they would prefer to assist by phone, which is ‘better than nothing’). When asked about whether police have a say in deciding whether a lawyer should attend remotely or physically, some said that they were free to choose to attend remotely, if there were sufficient consultation rooms available at the police station, while others said that the police would usually prefer lawyers to attend in person, unless for some reason remote attendance is more convenient. Overall, the mode of attendance at the police station – in person or remotely – seems to be the lawyer’s decision, and not that of the police, nor ultimately that of the suspect. Interestingly, no guidance has been issued by lawyers’ regulatory bodies, nor seems there to be any ongoing discussion about providing orientation points to inform this decision.
As concerns remote attendance in court, three types of decisions should be distinguished: first, advising the client about the mode of participation; second, challenging the decision to conduct a hearing remotely, or in hybrid form, where a client would attend remotely; and thirdly, a lawyer’s personal decision to attend physically (in court) or remotely (in a detention facility, or from their own office, home or another location).
As mentioned in Section 2, according to the interviewed lawyers, as a rule the main ‘trial’ hearings seem to be conducted with suspects present in person. However, lawyers did mention a few examples where the trial took place with suspects joining remotely. One was an example mentioned by Lawyer 12:
The same woman who the first time wanted to join via video, had to appear before the judge in a [city] at 9 am for a trial. Yeah, I received an email that it will not work, they will not get here there on time for the hearing. Well, in the end I [sic.! – A.P.] have still done it remotely. Because then you get an outcome, because they [the judge and the suspect – A.P.] wanted very much that it was dealt with…
Another example included remote attendance on the special request of the suspect, for instance attending from home when the suspect was ‘very pregnant’ and ‘could barely move.’
This shows that lawyers often must navigate a potentially thin line between the will of their client and the preferences of the court. These preferences did coincide in the above-mentioned example, but they might not align in other situations. According to the regulations in force, it is for the judge to decide on the mode of the hearing, as the suspect’s consent is required only in specific cases. However, it seems that at least regarding the ‘main’ hearings, the suspect’s preferences did play an important role, and were also respected by the lawyers and the court.
Practices have differed considerably across judicial districts regarding the mode of hearings, other than the main trial. In two districts for example, arraignment hearings were as a rule conducted with suspects joining remotely (presumably, with their prior consent, as this is required by current regulations). This did not seem to be the practice in other districts. Interestingly, lawyers commenting on this also said that they would attend the hearing at the detention facility next to their client, and not in court like for other types of hearings. It appears more common to conduct preparatory, or preliminary (so called ‘pro-forma’ hearings, or detention review hearings) with the suspect, and sometimes the lawyer, joining remotely. Here also practices seemed to differ depending on the district. The size of the district and busyness of the court and/or of the detention facility, distance from the court to the detention facility, as well as local cultures, were named as factors that could explain these differences.
Where hearings are conducted remotely or in a hybrid form as a standard practice, there is practically no room for the lawyer to object to it. At the same time, lawyers themselves were very positive about the possibility to attend remotely, which ‘saves a whole lot of time.’ These hearings were commonly described as ‘a mere formality’ or ‘not important’, their outcome was already pre-determined (so the lawyer could not influence it anymore), and they were very short (5–10 minutes), which did not justify the time spent on travel. However, the suspect’s opinion was nonetheless sometimes asked, and as mentioned in an example discussed earlier in this Section, lawyers were expected to convey it to the court.
Furthermore, the interviewed lawyers have mentioned that there were differences in the practices of appeal courts as concerns organising suspects’ attendance. In one appeal court, for instance, suspects would be standardly brought in via videolink, unless a lawyer actively objects to it. In another appeal court, the first preliminary hearing would be organised with a suspect joining via videolink, while a ‘substantive’ hearing would normally take place with the suspect being present, unless the lawyer requests participation via a videolink. This underlies the importance of good lawyer-client communication, which as described above, is challenging when the suspect is kept in a detention facility.
Some lawyers noted that they experienced additional administrative burdens related for instance to finding out their client’s preferences as to whether to appear in person or remotely, and making these preferences known to the court and the detention facility. One lawyer has given for instance the following example:
On Tuesday at yes, literally, when I went to collect my son from school, so it was literally at five minutes to two [this was the lawyer’s half-day off – A.P.]. I think they [the detention facility – A.P.] called and said my client wanted to stay at the detention facility tomorrow morning [when she had a detention review hearing – A.P.] because she could then also video call their kids or something, so they preferred her to stay there. But yes, she also wanted to attend the court hearing. So yes, we can ask for a video connection, but yes, we must ask permission from the court to arrange that with the Public Prosecutor. Yes, you must arrange it with the detention facility, so I called the clerk of the criminal court registry very quickly to see if that was possible, but he said, just send an email. Well, I just wanted to send an email very quickly, all that had to be done at three minutes before two. And fortunately, there are short communication lines here, so that you know who you’re dealing with, and they also know who is asking, so then I think I had the message at three o’clock that it was settled.58
Lawyers also experienced additional burdens due to the extra travel time if they wished to attend their clients in a detention facility before a remote (or hybrid) hearing.59 Additional time would also be spent, for instance, in arranging access to clients via videoconferencing in a detention facility (as all facilities may already be in use), or in waiting for the video connection to start.
The interviewed lawyers likewise felt responsible for ensuring that their clients are able to participate remotely, especially when the client was joining from the lawyer’s office or from home, and not from a detention facility. One lawyer, for example, said that they would try to do a trial run of MS Teams with their clients and explain what will happen once they connect. Most clients, however, would be joining from the lawyer’s office, as they simply would not have a computer with a reliable internet connection. Finally, some lawyers said that they needed additional time to set up digital filing systems (especially those who have still been working with paper case files), as well as to properly organise the documents that they would receive from the police, Public Prosecutor’s Service or the court. For instance, whilst mostly the case files sent were a searchable PDF-document containing hyperlinks, sometimes (and this related especially to large-volume files), they would be sent as one non-searchable PDF-file. It would then be up to the secretary, or the lawyer themselves, to ensure that the case file is searchable. Besides, audiovisual recordings and images at least in some districts were still provided on CDs separately from the digital case file, which would require spending considerable time to copy and organise the respective files.
4. Analysis: Implications on the Defendants’ Access to Criminal Justice
The right to legal assistance and representation is considered a key element in the criminal defendants’ access to justice.60 This distinguishes criminal law from other areas of law such as private law, where more emphasis is placed on issues like accessibility of courts, comprehensibility of legal procedures, and availability of legal information and self-help, rather than legal representation. It is thus not surprising that Article 6 of the European Convention of Human Rights, which contains guarantees of access to justice, only explicitly mentions the right to legal assistance and representation in criminal, and not in other types of cases.61
On the one hand, presumably, if lawyers become more effective in the exercise of their tasks, access to justice for criminal defendants should increase. This study has shown for instance, that digitalisation of the criminal proceedings post-pandemic has resulted in enhanced opportunities for access to the case file for lawyers and shorter communication lines with the relevant officials, as compared to the pre-pandemic experiences. This has probably made lawyers more effective in the exercise of their tasks (as reported by lawyers themselves) and contributed to reducing delays, which may also improve access to justice. At the same time, if lawyers enjoy better access to the case information and the relevant officials, this does not mean that their clients would also be better informed, or more involved in important decisions. Taking this step would require lawyers to adopt a client-centred defence style, and to put in additional efforts into informing and requesting input from their client.62
Earlier studies of criminal defence have shown that while many lawyers subscribe to the values of client-centred defence,63 this ideal cannot always be realised in practice.64 In reality, numerous factors (client characteristics, the informational uncertainty, time pressures, etc.) interfere with this ideal and encourage lawyers to adopt a paternalistic lawyer-centred style, in which the lawyer-client relationship is dominated by the lawyer.65 Whilst sometimes a lawyer-dominated style is appropriate, for example with respect to clients who risk inadvertently harming their own interests, in criminal law (unlike e.g. in commercial law), clients tend to have relatively little ‘power’ vis-à-vis their lawyers.66 Where the power balance in the lawyer-client relationship is already a delicate matter, lawyers who have full (digital) access to the information in the case file might distance themselves from their clients even further, because they may consider client’s input unnecessary to decide on the legal strategy. Likewise, when lawyers develop close(r) relationships with other criminal justice actors, and thus become part of the ‘court (or “criminal justice”) workgroup,’67 this may be beneficial for their clients’ outcomes, but it might also create more distance to their clients, and ultimately inhibit clients’ access to the respective procedures.
Furthermore, equating access to criminal justice with legal representation means that suspects and their lawyers are often being viewed by the law, and consequently by the criminal justice authorities, as one and unified whole. Thus, a lawyer is always assumed to act on the client’s behalf, unless it is proven that the lawyer has acted in a manifestly incompetent manner.68 Although these provisions aim to prevent encroachment upon the confidentiality of the lawyer-client relationship,69 they are based on assumptions which often do not hold true in practice. Namely, the assumptions that lawyers have had an opportunity to confer with their clients, and to secure their sufficient trust to find out what the clients want, and to decide on the common strategy. However, as several empirical studies have shown, lawyers are not always able, for different reasons, to sufficiently discuss the case strategy with their clients, or to secure their clients’ trust.70 Numerous challenges to effective lawyer-client communication and securing (mutual) trust exist even where such communication takes place face-to-face.
Digital communication would only exacerbate challenges related to effective communication and building trust, especially when it concerns a new client.71 First, many contextual (non-verbal) signals are lost in video communication.72 Second, these signals are not accurately represented in video communications. Some aspects of nonverbal behavior, such as facial expressions (if the face is more in the picture than the other parts of the body) may be emphasized more than others (for example, gestures). Research shows that it is more difficult to build a relationship with a person seen through a video screen,73 which can also play a role in communication between the suspect and their lawyer. Also, the quality of the image and the connection can be poor due to technical glitches, which further hinders effective communication and building trust.
At the same time, when the client is present at a hearing via a video link, a lawyer may feel compelled to speak on behalf of their client, even without having had a chance to properly discuss the strategy and find out the client’s views, simply because this is what is expected from them. When put under the pressure to continue with the (hybrid) hearing, lawyers might face a difficult dilemma of whether to insist on adjournment to allow a proper discussion with the client but cause further delay; or to acquiesce into it. Continuing with the hearing might seem an attractive solution, because it avoids a delay for the client, as well as saves lawyer’s own time. This is in line with the concept of ‘ethical indeterminacy’ referred to in Section 3, where lawyers, when faced with several courses of action which could all be justified as benefitting (or not harming) the client’s interest, would choose one that most aligns with their own self-interest.74
The turn to digital proceedings therefore seems to create further hurdles towards the practical realization of the ‘ideal’ lawyer-client relationship, an assumption which largely underlies our conception of effective access to criminal justice.
Another consequence of equating access to criminal justice with access to legal assistance is that criminal defence lawyers are placed in a unique position as compared to lawyers working in other areas of law. They are often made responsible not only for achieving a certain legal outcome, but also for ensuring that their clients (feel that they) can effectively participate in the proceedings.75 This results in a burden, that is arguably not experienced in the same way for instance by lawyers working in commercial law practice. For example, as empirical research has shown, it is not uncommon for criminal justice authorities to ‘delegate’ certain tasks, such as signalling suspects’ particular vulnerabilities or special needs, or ensuring that they understand the nature of the accusation and of the proceedings, to defence lawyers.76
These additional burdens are likely to be exacerbated with the turn to digitalised proceedings. As demonstrated by examples discussed earlier, lawyers seem to be given (and to assume) additional organisational tasks e.g. when it comes to ensuring that their client’s wishes regarding the mode of participation was respected. Likewise, lawyers seem to be given the task of ensuring that their clients, many of whom are not digitally savvy, are able to effectively participate in remote hearings, and that they duly receive and understand digital communications and the contents of the digital case file. Furthermore, lawyers need to invest additional time and resources into setting up new digital filing systems, which is often not compensated for by the state. Finally, several lawyers mentioned that sometimes documents were added to the case file very shortly before the hearing, which made it more difficult to timely inform and if necessary, discuss their contents with their clients.
Thus, digitalisation of criminal proceedings seems to result in additional burdens on criminal defence lawyers related to ensuring their clients’ effective participation in such proceedings, which requires additional time investment. Given especially that legal aid fees in the Netherlands are fixed per case, it is unrealistic to expect lawyers to invest (substantially) more time in cases, which proceed digitally.77 This might ultimately harm defendants’ access to criminal justice.
Another important concern that arises with regard to legal representation in digitalised proceedings is equal access to criminal justice. Several lawyers interviewed for this study noted that they had to make certain choices as concerns which clients they would attend personally (e.g. at the police station or a detention facility), as well as in which situations they would insist that the hearing should be conducted physically, or that the client should be present in person. The considerations behind these decisions appear complex, and they would probably necessitate a separate study. As with many ethical dilemmas they face, lawyers seem to appeal to a combination of idealistic and pragmatic reasons in making these decisions. In addition to the client’s own wishes, some factors mentioned in interviews were, for instance, the nature of the hearing (meaning: whether ‘important’ matters were going to be discussed and whether the lawyer believed they could influence the outcome), the extent to which the lawyer ‘knew’ their client, whether the client was likely to understand the proceedings if participating remotely, and the nature of the case (i.e. ‘what is at stake,’ often considered in combination with the chances to obtain a favourable outcome). Among the more pragmatic factors, the financial reasons, distance to the facility, the time that the hearing is likely to last, and lawyer’s other commitments were regularly mentioned. Interestingly, the factors mentioned by lawyers did not entirely correspond to those initially mentioned in the respective regulation as factors preventing remote participation of suspects in criminal court hearings: namely, their minor age, mental or cognitive developmental disorder/disability, as well as certain types of criminal cases (sexual offences, cases which caused a victim’s death, and cases where the victim makes a victim impact statement).78 Another interesting observation is that no guidance had been issued by the lawyers’ regulating authority (e.g. the Dutch Bar Association) on how lawyers should deal with providing remote assistance and/or with remote participation of the client at various stages of the criminal proceedings.
5. Conclusion
Access to justice has become a key theme in debates around digital and remote justice.79 In criminal justice, access to legal representation is considered key for defendants’ access to justice, to the extent that access to criminal justice is sometimes equated with effective legal assistance. Thus, many issues around access to digital criminal justice are likely to be related to the role of criminal defence lawyers. Improving access to digital criminal justice would also primarily require action directed at defence lawyers. Against this backdrop, this article concludes with a list of recommendations, which have become ‘standard’ in research studies on criminal defence lawyering: improve funding, and provide more resources and training. In this particular case, training should focus on the use of digital technologies, but also on the various implications of digitalisation of procedures, for instance on the communication in and outside of the courtroom, fact-finding, and the roles of the different procedural actors.
Additionally, two recommendations can be derived from this research. First, the turn to digital justice necessitates to revisit the (arguably, excessive) reliance on lawyers as a means of ensuring access to justice for criminal defendants. Digitalisation of criminal procedures creates additional burdens for lawyers, which are not equally shared by other procedural actors. This is problematic from the standpoint of access to justice, given the deep inequalities of power that already exist in the criminal process. Clear regulations and procedures should be created, whereby other actors – namely, courts, prosecutors, and police – should be made responsible for issues like notifying clients and their families about the mode of proceedings (remote or in-person), providing suspects with access to the case file and other important information, and duly informing suspects and their families about the technical aspects of digital hearings or digital communications. Second, certain additional tasks and dilemmas that lawyers currently experience can be avoided by adopting clear(er) regulations, in the form of judicial guidance, on the use of videoconferencing in criminal proceedings. Such regulations are currently being developed under the auspices of the Council for the Judiciary.
Third, it appears that criminal defence lawyers require further guidance, to be adopted for instance, by the Dutch Bar Association, or by the Dutch Association of Criminal Defence Lawyers (NVSA), to address various ethical and professional dilemmas related to digitalised criminal proceedings. These should include questions on how (based on which factors) lawyers should: a) decide whether or not to assist (detained) clients remotely or in person, for example during the phases of police detention and pre-trial detention; b) advise their clients on whether or not to participate remotely; c) decide whether to challenge decisions to conduct a hearing, or to hear the suspect remotely; and d) decide whether or not to attend a hearing or another criminal procedural action in person or remotely. Such guidance could also include advice on dealing with issues like breaches of lawyer-client confidentiality during remote contact, late provision of digital access to the case file, or the inability to reach the detained client before a (remote) hearing.
Finally, although this research has revealed some of the pertinent issues, more systematic research is needed into the various dilemmas and problems that defence lawyers may experience as the consequence of increasing digitalisation of criminal proceedings. It is only when these dilemmas and problems are duly addressed, that the ideal of effective access to digital criminal justice can be realised.
Notes
[1] Anne Poulin, ‘Criminal Justice and Videoconferencing Technology: The Remote Defendant’ (2004) 78 (4) Tulane Law Review 1089; Carolyn McKay and Kristin Macintosh, ‘Digital vulnerability: People-in-prison, videoconferencing and the digital criminal justice system’ (2024) 57(3) Journal of Criminology 313; Meredith Rossner and David Tait, ‘Presence and Participation in a Virtual Court’ (2023) 23 (1) Criminology & Criminal Justice 135; Sigrid van Wingerden and Gaby Vanderveen, ‘Effectieve Participatie in Strafzaken via een Beeldscherm: Ervaringen van Gedetineerden, Advocaten en Rechtbankverslaggevers Tijdens de Lockdown’ (2023) 64 Tijdschrift voor Criminologie 427.
[2] Emma Rowden and Anne Wallace, ‘Remote Judging: The Impact of Video Links on the Image and the Role of the Judge’ (2018) 14 (4) International Journal of Law in Context 504; Emma Rowden and Anne Wallace, ‘Performing Expertise: The Design of Audiovisual Links and the Construction of the Remote Expert Witness in Court’ (2019) 28 (5) Social & Legal Studies 698; Bethany R Muir, Eryn J Newman and Meredith Rossner, ‘The Role of Video Background Cues in the Virtual Court: A Psychological Perspective’ (2023) Psychology, Crime & Law 1; Elena Bild and others, ‘Sound and Credibility in the Virtual Court: Low Audio Quality Leads to Less Favorable Evaluations of Witnesses and Lower Weighting of Evidence’ (2021) 45 (5) Law and Human Behavior 481.
[3] See for exceptions, Maria Bruquetas Callejo, Marieke Dubelaar and Karen Geertsema, ‘The Lawyer as a Key Player in Guaranteeing Access to Justice in the Digital Era’ (2022) 43 (2) Recht der Werkelijkheid 89; van Wingerden and Vanderveen (n 1).
[4] Marijke ter Voert and others, ‘Gevolgen van COVID-19 Voor de Rechtspraak en Kwetsbare Rechtzoekenden: een Onderzoek Naar Maatregelen en de Positie van Rechtzoekenden Binnen het Straf-, Civiele Jeugdbeschermings-, en Vreemdelingenrecht’ (Radboud University, Utrecht University and Leiden University 2022) <https://scholarlypublications.universiteitleiden.nl/handle/1887/3279384> accessed 10 October 2024.
[5] Kathryn Roulston and Myungweon Choi, ‘Qualitative Interviews’ in Uwe Flick (ed) The SAGE handbook of qualitative data collection (SAGE Publications Ltd. 2018) 233.
[6] Anna Pivaty, ‘Criminal Defence at the Police Station: A Comparative and Empirical Study’ (Doctoral Thesis, 2019); Daniel Newman, Legal Aid Lawyers and the Quest for Justice (Bloomsbury Publishing 2013); Ashlee Beazley, ‘Take (What They Say) With a Pinch of Salt: Engaging in Empirical Research to Understand the Parameters of the “Quality” in “Poor-Quality Defence Lawyering”’ (2022) 2 (1) Journal of Legal Research Methodology 75.
[7] Mike McConville and others, Standing Accused: The Organization and Practices of Criminal Defence Lawyers in Britain (OUP 1994); Pivaty (n 6).
[8] Richard Moorhead and Victoria Hinchly, ‘Professional Minimalism? The Ethical Consciousness of Commercial Lawyers’ (2015) 42 (3) Journal of Law and Society 387.
[9] Peter Mercer, Terra Strong and Margaret Ann Wilkinson, ‘The Practice of Ethical Precepts: Dissecting Decision-Making by Lawyers’ (1996) 9 (1) Canadian Journal of Law & Jurisprudence 141; Sally Gunz and Hugh Gunz, ‘Ethical Decision Making and the Employed Lawyer’ (2008) 81 Journal of Business Ethics 927.
[11] ‘Rechtspraak en OM werken corona-achterstanden weg’ (25 June 2020) <https://www.rechtspraak.nl/Organisatie-en-contact/Organisatie/Raad-voor-de-rechtspraak/Nieuws/Paginas/Rechtspraak-en-OM-werken-corona-achterstanden-weg.aspx> accessed 10 October 2024.
[12] Brief Minister van Justitie, Minister van Rechtsbescherming en Staatssecretaris van Justitie 15 maart 2020, Kamerstukken II 2019/20, 25295, 114.
[14] ‘Videozittingen en mailen met de Rechtspraak’ (7 april 2020) https://www.rechtspraak.nl/Organisatie-en-contact/Organisatie/Raad-voor-de-rechtspraak/Nieuws/Paginas/corona-Videozittingen-en-mailen-met-de-rechtspraak.aspx> accessed on 10 October 2024.
[15] ‘Gerechtsgebouwen aangepast aan anderhalvemetersamenleving,’ (11 May 2020) https://www.rechtspraak.nl/Organisatie-en-contact/Organisatie/Raad-voor-de-rechtspraak/Nieuws/Paginas/Corona-Gerechtsgebouwen-aangepast-aan-anderhalvemetersamenleving.aspx accessed 10 October 2024. See also Kamerbrief van 23 april 2020, Kamerstukken II, 35300–VI, 126.
[17] Ter Voert and others (n 4) 50. ’Online zittingen voortaan ook via Microsoft Teams mogelijk’ (29 November 2021) https://www.rechtspraak.nl/Organisatie-en-contact/Organisatie/Raad-voor-de-rechtspraak/Nieuws/Paginas/Online-zittingen-voortaan-ook-via-Microsoft-Teams-mogelijk.aspx#:~:text=Vanaf%201%20december%202021%20zet,zitting%20goed%20te%20laten%20verlopen accessed 10 October 2024.
[19] Ter Voert and others (n 4) 73–74. In the Netherlands, certain criminal cases, labelled as ‘very speedy cases,’ can be brought to trial (with consent from the suspect) within three to six days from the moment of suspect’s arrest and interrogation. These are evidentially ‘simple’ cases considered to be proven, involving eg, the use of violence at demonstrations and events.
[20] Wet van 22 april 2020, houdende tijdelijke voorzieningen op het terrein van het Ministerie van Justitie en Veiligheid in verband met de uitbraak van Covid-19 (Tijdelijke wet COVID-19 Justitie en Veiligheid), Stb. 2020, 124.
[22] ‘Veilig mailen met de Rechtspraak: ‘Advocaten zijn kritisch, dat houdt ons scherp’ (28 April 2021) <https://www.advocatie.nl/innovatie-en-tech/veilig-mailen-met-de-rechtspraak-advocaten-zijn-kritisch-dat-houdt-ons-scherp/> accessed 10 October 2025.
[23] ‘IND gaat over op Veilig Mailen in plaats van faxen’ (8 August 2023) <https://ind.nl/nl/nieuws/ind-gaat-over-op-veilig-mailen-in-plaats-van-faxen> accessed 10 October 2024.
[25] ‘Veilig mailen met de Rechtspraak vervangt de fax’ (31 January 2022) <https://www.advocatenorde.nl/nieuws/veilig-mailen-met-de-rechtspraak-vervangt-de-fax> accessed 10 October 2024.
[26] Besluit van 8 mei 2006, houdende algemene eisen ten aanzien van het horen van personen per videoconferentie Stb. 2006, 275 (Besluit videoconferentie).
[27] ‘5 vragen over digitalisering rechtspraak’ (15 November 2018) <https://www.rechtspraak.nl/Organisatie-en-contact/Organisatie/Raad-voor-de-rechtspraak/Nieuws/Paginas/5-vragen-over-digitalisering-rechtspraak-.aspx> accessed 10 October 2024.
[28] ‘Mijn Strafdossier – digitaal stukken uitwisselen’ <https://www.rechtspraak.nl/Voor-advocaten-en-juristen/Reglementen-procedures-en-formulieren/Strafrecht/Paginas/Mijn-strafdossier.aspx> accessed 10 October 2024.
[29] ‘Uitbreiding advocatenportaal Mijn Strafdossier’ (28 October 2017) <https://www.advocatenorde.nl/nieuws/uitbreiding-advocatenportaal-mijn-strafdossier> accessed 10 October 2024.
[30] ‘Mijn Strafdossier – digitaal stukken uitwisselen’ <https://www.rechtspraak.nl/Voor-advocaten-en-juristen/Reglementen-procedures-en-formulieren/Strafrecht/Paginas/Mijn-strafdossier.aspx> accessed 10 October 2024.
[31] Besluit van 8 mei 2006, houdende algemene eisen ten aanzien van het horen van personen per videoconferentie Stb. 2006, 275 (Besluit videoconferentie).
[32] Besluit van 8 mei 2006, houdende algemene eisen ten aanzien van het horen van personen per videoconferentie Stb. 2006, 275 (Besluit videoconferentie). Amended on 20 March 2020 with regard to criminal law, Stb. 2020, 101.
[34] Remand detention review hearings take place three days after the initial judicial decision to detain the suspect on remand. During these hearings, closed to the public but oral and adversarial in nature, the judge verifies whether the grounds for pre-trial detention (still) apply, in the presence of the public prosecutor, the suspect and their lawyer.
[38] Marieke de Hoon, Marianne Hirsch Ballin and SGMJ Bollen, ‘De Verdachte in Beeld. Eisen En Waarborgen Voor Het Gebruik van Videoconferentie Ten Aanzien van Verdachte in Het Nederlandse Strafproces in Rechtsvergelijkend Perspectief’ (Vrije Universiteit – Faculteit der Rechtsgeleerdheid 2020).
[39] This concerned a hearing in a multi-day trial in a case heard by a panel of three judges. Interview with Lawyer 6 (translated by the author).
[41] Bruquetas Callejo, Dubelaar and Geertsema (n 3); van Wingerden and Vanderveen (n 1); ter Voert and others (n 4).
[46] Cyrus Tata, ‘In the Interests of Clients or Commerce? Legal Aid, Supply, Demand, and “Ethical Indeterminacy” in Criminal Defence Work’ (2007) 34 (4) Journal of Law and Society 489.
[50] Art. 34 CCP, introduced by the 2011 Law on Access to the Case File. Wet van 1 december 2011 tot wijziging van het Wetboek van Strafvordering in verband met de herziening van de regels inzake de processtukken, de verslaglegging door de opsporingsambtenaar en enkele andere onderwerpen (herziening regels betreffende de processtukken in strafzaken), Stb. 2011, 601. The Law entered into force on 1 January 2013: see Stb. 2012, 408.
[54] Miet Vanderhallen and others, Toga’s in De Verhoorkamer: De Invloed Van Rechtsbijstand Op Het Politieverhoor (Boom Lemma 2014); Anna Pivaty and others, ‘Contemporary Criminal Defence Practice: Importance of Active Involvement at the Investigative Stage and Related Training Requirements’ (2020) 27 (1) International Journal of the Legal Profession 25.
[56] Max Visser, Roel Schouteten and Josje Dikkers, ‘Controlling the Courts: New Public Management and the Dutch Judiciary’ (2019) 40 (1) Justice System Journal 39.
[60] Fundamental Rights Agency, ‘Handbook on European law relating to access to justice’ (2016) 73 onwards <https://www.echr.coe.int/documents/d/echr/handbook_access_justice_eng> accessed 10 October 2024.
[62] Douglas E. Rosenthal, Lawyer and Client: Who’s in Charge; David A. Binder and Susan C. Price, Legal Interviewing and Counseling: a Client-Centred Approach (1st ed., St. Paul, US: West Academic Publishing 1977)
[63] Lucy Welsh and Daniel Newman, ‘Camaraderie and Conflict: Developing an Occupational Culture Typology of Publicly Funded Criminal Defence Lawyers in England and Wales’ (2023) 31 (1) International Journal of the Legal Profession 1; Newman (n 6); Pivaty (n 6).
[64] McConville and others (n 7); Newman (n 6); Pivaty (n 6); Jodie Blackstock and others, Inside Police Custody: An Empirical Account of Suspects’ Rights in Four Jurisdictions, vol 113 (Intersentia 2013).
[67] Lucy Welsh, Access to Justice in Magistrates’ Courts A Study of Defendant Marginalisation (Hart Publishing 2022).
[68] The European Court of Human Rights for instance is extremely reluctant to closely review allegations of ineffective legal assistance, because it does not wish to encourage state authorities to interfere with the confidentiality of the lawyer-client relationship. See Ebanks v. United Kingdom App no 36822/06 (ECtHR, 26 January 2010) para. 72.
[71] Eric T. Bellone, ‘Private Attorney- Client Communications and the Effect of Videoconferencing in the Courtroom’ (2012) 8 (1) Journal of International Commercial Law and Technology 24, 33.
[75] Nourit Zimmerman and Tom Tyler, ‘Between Access to Counsel and Access to Justice: A Psychological Perspective’ (2010) 37 (1) Fordham Urban Law Journal 473.
[76] Blackstock and others (n 64); Miet Vanderhallen and others, Interrogating Young Suspects II. Procedural Safeguards from an Empirical Perspective (Intersentia 2016).
[79] Marijke Voert, Anna Pivaty and Enguerrand Marique, ‘Access to Justice in the Digital Era’ (2022) 2 Recht der Werkelijkheid 3.
Competing Interests
The author has no competing interests to declare.