Criminal Justice in Europe: A Comparative Study

By Phil Fennell; Christopher Harding et al. | Go to book overview

in investigation. If a case appears unproblematic on the basis of the police file, the prosecutor will rarely look beneath the surface unless defence counsel has indicated there is something down there. If defence counsel is incompetent or lazy the system will not work.88 But once prosecutors are alerted to difficulties they are often decisive in response. If the submitted completed file reveals a case that is complex or evidence that is ambiguous or unconvincing in the light of comments from defence counsel, then, unless the case is serious, the prosecutor may well simply drop it or settle it rather than seek to direct the police to strengthen it.89 It should be remembered that, unlike England and Wales, in the Netherlands it is quite routine to drop cases in such circumstances. About 50 per cent of cases are dropped or transactied by the prosecutor.90 About a third of these will be technical waivers (including those generated by lack of evidence).

Similar considerations apply to evidence of malpractice by officers. There is considerable disagreement about the extent to which routine requests for coercive powers are used by the prosecutor as a real opportunity to scrutinize closely police tactics and procedures.91 It is also said that officers do their best to avoid malpractice appearing on file. It is, for example, said that commonly sources of information are concealed. But defence counsel, who have a right of access to the file, have a responsibility to point out any impropriety of which they are aware to the prosecutor. If the police play tricks with a prosecutor and this produces embarrassment for him or her before an investigating judge or court in chambers, or worse still the trial court itself, then the prosecutor, apart from reporting the officer to his/her disciplinary superiors, will look at future information from that officer with greater scepticism. This will make the officer's job more onerous as, in the end, it is the prosecutor's decision to charge, and a waiver would mean the officer having worked hard to no avail. The police need to retain prosecutors' confidence and there are limits to their credulity. In the end much of the system depends on the development of a relationship of mutual trust between police, prosecutor, and court in the context of institutional incentives very different from those in the adversarial system.


CONCLUSION

The Dutch system places great faith in the importance of balanced thoroughness in pre-trial investigation and the centrality of monitoring by judicial figures, because the role of the trial is completely different. We have seen that one of the consequences of such faith is a more restricted

____________________
88
But of course this is equally true of the adversarial system in England and Wales.
89
Van de Bunt, Officieren van Justitie, 401.
90
Brants and Field, Chap. 7, above.
91
See Leigh and Hall William, The Prosecution Process, at 59-60.

-247-

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