“I remember a case in which the suspect lodged a complaint because his title – Doctor – was not present on the summons,” says Joep Simmelink, professor occupying the endowed chair of Criminal Law and Criminology at the Faculty of Law. “He argued: the summons was not sent to me, so I do not need to appear. The judge gave short shrift to this, having trouble not to burst out laughing.”
But what if it was an incorrect date of birth or first name – Bert instead of Burt – on the summons? It is this category of ‘silly mistakes’ that a lot of people still think leads to cases being dropped and suspects being released. What about a file that is incomplete on the day of the hearing, or a police officer who failed to properly inform the suspect according to the rules prior to questioning. All technicalities (mistakes by the police or public prosecutor in the criminal law procedure) that a lawyer can use to turn into an issue.
Simmelink: “Technicalities do occur, certainly, in all sorts of degrees, but it is a myth that suspects are regularly being released for that reason. This persistent image is rooted in the past when the justice system in this field was different. That was when evidence could not be included in a case because of a stupid unintentional mistake and someone had to be released. In the seventies and eighties, there was increasing criticism, people asking whether a suspect should always be released if the police had made a mistake? After all, one mistake was more serious than another – should the judge not be more clement in his decision?” Finally, in 1996, the technicality oversight law was introduced. This gave judges room to manoeuvre.
The toughest sanction that a judge can impose, is a declaration of inadmissibility for the public prosecutor. He then has no case. Simmelink: “In this instance, there must be an act of intentional or grossly negligent infringement of the proper course of proceedings, as a result of which the suspect no longer has the chance of a fair trial. But fortunately, this only happens sporadically.” Halfway through the nineties, “as an example of such an exceptional category,” a policeman misled the court. During the hearing, the policeman was questioned as a witness and failed to disclose his method of investigation – a method that was prohibited. The case concerned one of the largest cocaine transports, says Simmelink. That was the end of that for the public prosecutor, because criminal proceedings had been brought to a stagger.
Sometimes, the judge can also decide to reduce the sentence in the case of a technicality. Take a case from a few years back, in which a policeman grabs a handcuffed suspect by the neck when the suspect threatens him. Disproportional and impermissible, the defence felt. The public prosecutor should be declared nonsuited. The judge felt this was taking things too far, but two weeks was taken off the suspect's sentence.
So, what if a policeman sets up a meeting with a suspect ‘as a civilian’, without the approval of the public prosecutor, but still manages to extract important information from the suspect? Is this not admitted as evidence? “The public prosecutor can declare afterwards that he accepts responsibility for the procedure and gives his approval. It is true that officially this is a technicality, but you have to ask yourself what the purpose is of such a regulation. Has the suspect been disadvantaged? Can he or she no longer properly defend himself or herself?”
Finally, Simmelink mentions the opposite, which is that people think that technicalities hardly ever have consequences and that the police and public prosecutor just mess about, “saying that the end justifies the means. But that is by no means true. We have to adhere to the rules. Sometimes, the public prosecutor decides not take a case to court, because a policeman has made a serious mistake. That is when the public prosecutor says: ‘I won't accept responsibility for this’.”