The Dutch attorney and his client (updated version)

There can be no doubt that access to a lawyer is a crucial right for any defendant in a criminal case. It will endorse the defendant’s right to a fair trial and it will help to secure that the defendant is not ill-treated while in custody. Of course, the attorney-client or legal privilege has to be respected to make the assistance of a lawyer practical and effective. In this respect, Dutch criminal procedural law provides for the assistance of a lawyer from a very early stage of the pretrial investigation, and secrecy is generally warranted. However, legal privilege is regarded by some as a nuisance, standing in the way of effective criminal investigations. This is why in the drafting process of the new Dutch Criminal Procedural Code, the drafting of provisions dedicated to the legal privilege have to be followed with scrutiny. The legislator is actually trying to codify the full scope of the legal privilege, including exceptions that justify breaching it. In general, only very rarely should other interests, such as discovering the truth in a criminal investigation, outweigh the interest of respecting the legal privilege. A detailed and balanced legal framework is necessary.