Tuesday, 16 September 2014

The Dutch vs English Criminal Justice System

By Sibel Onemli, a recent work experience student with Wainwright & Cummins

Having done a law degree in the Netherlands and having recently graduated for my LLM from UCL, I had the chance to compare the Dutch criminal justice system with the English system by doing a work placement at Wainwright and Cummins solicitors. The English and the Dutch criminal justice system will in the following be compared by discussing a couple of subjects.

Jury vs. judge
The lack of a jury in the civil law system is the first difference between the two systems. In the Netherlands, the concept of a jury is unknown; it is the judge who decides upon the facts and the law of a case. Trust is put in those who have enjoyed the right legal training and have acquired the right work experience. They are regarded as the most eligible persons to sentence by deciding on the facts as well as the law.

In the UK, it is the jury who is responsible for finding the facts, while the judge determines the law. The tasks are therefore separated. An argument in favour of the jury system is that the offender is being judged upon his innocence/guilt by the people who are on the same foot as him. This may provide a fair hearing and a sense of justice to the offender. Another argument is that it provides an important check against state power and that the lay people are able to incorporate the norms and values of the public in the sentencing process.

In my view, a disadvantage of the jury system is that the lay people lack the legal background and experience in criminal law cases. When I first visited an English criminal case at the Old Bailey a couple of years ago, the first thing I noticed was that some jury members did not seem to pay attention during the hearing. This might have not been the case, but the impression one gives can be determining on how serious one takes his responsibility. The jury consists of ordinary people, deciding on the most crucial cases which can have a major impact on one’s life. This experience made me realise that I would not opt for a jury system in the Netherlands.

Minimum evidence
Looking at the criminal justice process, a difference between the English and the Dutch criminal law system is the minimum evidence that is required to start a prosecution.

In the English system, the requirement is that prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge.

In the Netherlands, the prosecutor needs to satisfy the minimum evidence requirement, which is set out in several provisions in the Dutch Code of Criminal Procedure. Article 342 sub 2 sets out for example that one witness statement is insufficient (unus testis nullis testis). Another key provision is article 341 sub 4, which states that proof that the defendant committed the offence may never be based solely on the statements made by the defendant himself. It is possible however to base this proof on an official report by an investigating officer, as this has special evidential value.

When comparing these two requirements, I would argue at first glance that it seems that the requirement in the UK seems very broad and that it is much easier to start a prosecution here than in the Netherlands. Since I had no further dealings with this, I will not be able to compare it thoroughly, but what can be said however, is that it always depends on the circumstances of a case whether or not to start a prosecution.

Life sentences
During my study, I focused on life imprisonment. The Netherlands and the UK are one of the rare examples of the Convention states in which life means literally life.

In the UK, section 269 Criminal Justice Act 2003 sets out that a "whole life order" (where no minimum term is set) can be made if the offender was 21 or over when he committed the offence and the seriousness of the offence warrants it. The only possibility for a whole life prisoner to be released is on ‘’compassionate grounds’’ by the Secretary of State (section 30 Crime Sentences Act 1997). The conditions are set out in Chapter 12 of the Prison Service Order 4700: a prisoner can only be released when he is terminally ill or seriously incapacitated.

In 2013, it was time for the European Court of Human Rights (ECtHR) to decide whether life imprisonment in the UK was compatible with the European Convention on Human Rights (ECHR). In Vinter, which was a case about three whole life prisoners, it ruled that whole life terms without the possibility of review are unlawful and in breach of Article 3 ECHR, which prohibits inhuman and degrading treatment and torture. The release possibility set out in Section 30 CSA 1997 was considered to be insufficient to meet the ECHR standards, since it would mean that a prisoner died at home or in a hospital. Therefore, there had to be both a real possibility of review and a possibility of release.

The decision which should have made an end to the discussion on life imprisonment in the UK, did unfortunately not come. In fact, it caused more confusion. In McLoughlin, which was a case on whole life imprisonment, the Court of Appeal held that the possibility of release, set out in section 30 CSA 1997, was sufficient to meet the ECHR standards, as the Secretary of State is bound to exercise her powers in accordance with the Human Rights Act 1998. This means that section 30 CSA 1997 can be interpreted in a flexible way in order to meet the Article 3 ECHR standard. This does not seem sufficient to me, as the broad interpretation possibility gives no ground for prisoners to stand on. The Prison Service Order therefore needs to be made clearer by for example adding more grounds. Another possibility would be to review life sentences after a certain number of years. In the UK, it was practice to review life sentences after twenty-five years; however, this provision has been abolished with the amendment of the Criminal Justice Act 2003.

In the Netherlands, one can be convicted to life imprisonment for serious offences, such as murder. The only way for a life prisoner to be released is by being pardoned by the monarch. In practice, this has not happened since 1986. Since the Netherlands does not provide for a review mechanism either, it is questionable whether this can be considered as a real possibility of release at all. The Dutch Supreme Court has held in this regard in 2011 that the Dutch practice on early release meets the ECHR standards, since life sentences are reducible by way of pardoning. It was furthermore decided that it was too early to rule whether life sentences in the Netherlands are indeed irreducible, since no life sentence has been served long enough to consider the pardoning.

In my view, both practices regarding life imprisonment can be questioned. The UK did have a review mechanism in place, but since the amendment of the Criminal Justice Act 2003, this has been removed. In the Netherlands, there is no review mechanism at all. These practices seem to leave life prisoners in both countries with no hope of release. In order to meet the ECHR standards, reviewing a life sentence after a certain period should be advisable in order to remain human dignity in sentencing and meet the ECHR standard.

Some thoughts have been illustrated on the differences between the English and the Dutch criminal law system on a couple of subjects. It can be concluded that it is not possible to argue that one system is better than another; they have both advantages and disadvantages. What can be accomplished by comparing the two systems however is to learn from each other, while having regard to their origins and historical background. What is a fact however is that the ECtHR influences the sentencing systems of all the Convention states, including the UK and the Netherlands. These states therefore have the obligation to abide by the human rights set out in the ECHR.


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