Shifting Systems: A comparison of the role of the defence lawyer in England and Wales and the Netherlands

Over the past four decades, criminal procedural systems in England and Wales and the Netherlands have undergone significant transformations that have reshaped the role of the defence lawyer. In England and Wales, a once staunchly adversarial model—anchored by the Police and Criminal Evidence Act 1984—has seen due process norms gradually subordinated to managerial imperatives of efficiency and economy. Key reforms, including amendments to the right to silence, the introduction of the defence case statement under the Criminal Procedure and Investigations Act 1996, and the establishment of the Criminal Procedure Rules 2003, have imposed new disclosure and case-management duties on defence practitioners, often without a commensurate expansion of their powers or resources. The advent of pre-charge engagement further frontloads defence involvement, yet remains underutilised amid systemic backlogs. Conversely, the Dutch inquisitorial framework has incrementally adopted adversarial elements—driven by European human-rights directives and Strasbourg jurisprudence—to bolster suspects’ procedural safeguards. From the acceptance of pre-interrogation legal assistance following Salduz ( Salduz v Turkey, App No 36391/02, ECHR 1542, (2009), 49 EHRR) to ongoing reforms in the Code of Criminal Procedure, Dutch defence lawyers now confront greater obligations to articulate investigative requests early, even as judges and prosecutors cede parts of their traditional oversight in favour of streamlined, preliminary inquiries. Simultaneously, managerial pressures in the Netherlands mirror those in England and Wales, with output-oriented funding and rising workloads challenging the effective exercise of enhanced defence rights. This comparative analysis reveals a convergence: both jurisdictions prioritize efficiency, often at the expense of fair-trial guarantees. While English defence advocacy risks erosion under managerialism, Dutch lawyers shoulder expanded adversarial responsibilities without always having adequate infrastructural support. As each system rebalances its checks and balances, the enduring question is whether these ‘shifting systems’ ultimately advance justice or merely recalibrate the procedural burdens borne by those who defend the accused.