Investigators see a clear link between a lawyer advising his client prior to police questioning and his presence during the interrogation
The experiment of having lawyers attend police interrogations of suspects has been successful. For two years the police and the legal profession have had the opportunity to gain experience with lawyers attending police interrogations. The investigators see a clear link between the lawyer advising his client prior to interrogation and the conduct of the suspect and police officials during the interrogation in the lawyer’s presence. The conclusion seems to be justified that a lawyer’s advice prior to interrogation and his presence during interrogation cannot be seen as separate. Minister of Security and Justice Opstelten sent the report to the Lower House today, but does not want to base his decision about the admission of lawyers to police interrogations solely on the investigation conducted.
In the aftermath of the Schiedam Park Murder, a 2-year experiment was started in July 2008, giving lawyers permission to attend the initial police interrogations in murder and homicide cases in Amsterdam and Rotterdam. On the instruction of the Research and Documentation Centre (WODC) of the Ministry of Security and Justice, the investigators examined whether the presence of the lawyer might contribute to the transparency, verifiability and quality of the interrogation. The results of the investigation have been laid down in the report entitled ‘Lawyers Present during Police Interrogation’ compiled by researchers from the Erasmus University of Rotterdam and the Free University of Amsterdam.
The presence of the lawyer, but especially the consultation of the suspect prior to interrogation, seems to encourage the suspect to use his right to remain silent. In turn, this leads to increased pressure of the interrogators on the suspect. The investigators conclude that, in general, hard forms of pressure are rarely used. They also describe how the lawyer’s presence and advice changes the use of interrogation techniques by the police. Apparently, the police makes less use of certain ‘hard’ interrogation techniques if the lawyer is present during the interrogation. According to the investigators, this leads to the conclusion that if the lawyer gives prior advice, he should also be present at the interrogation.
Interviews with lawyers have also shown that in many cases, prior consultation often comes down to advising the client to claim the right to remain silent. According to the investigators, the influence of the consultation is important, since a right of consultation was recently granted to Dutch suspects based on case law of the European Court of Human Rights (in, among others, the case of Salduz).
Response of the Ministry of Security and Justice
Minister of Security and Justice Opstelten is critical of the suggestion that lawyers should – as a general rule – be present during police questioning. In his letter to the Lower House he points out that in the Netherlands 350,000 suspects are being questioned each year. The investigators attended 168 interrogations of 94 suspects in 74 cases. The Minister writes that the findings of the experiment cannot be automatically extrapolated to regulations that concern other offences than the examined homicide cases. The financial and operational consequences to the police and the legal profession were not taken into account in the assessment. Because of the possibly far-reaching consequences that the presence of the lawyer during police interrogations could have for both professions, as well as for criminal justice proceedings, further investigations will be required.
Minister Opstelten writes that there must be a proper balance between a fair trial and the process of establishing the truth. Since the start of the experiment, the practice of interrogation has changed considerably as a result of several court decisions. In addition, an increasing number of interrogations is being audiotaped or videotaped, so that the court may assess in retrospect whether unlawful pressure was exercised during the interrogation. What the Minister wants is that all these developments, together with the conclusions of the investigation, will result in a balanced proposal for the admission of lawyers to police interrogations, when the Code of Criminal Procedure is up for revision. This legislative proposal will also regulate the criminal inquiry phase and will be ready to be debated shortly.