Will there finally be some acceleration in the syrupy criminal justice process?

Almost anyone who has been involved in a criminal trial will agree that the chain is pretty congested. There is often a long wait for a verdict. And certainly for a final judgment by the Court of Appeal or Supreme Court. A personal life can become quite disrupted by these long uncertainties. For many, therefore, the Modernisation of Criminal Procedure and Innovation Act, which has been in the pipeline since 2014, will make criminal procedural law more efficient. 

Prejudicial questions in criminal cases

One way to make criminal proceedings more efficient is the possibility for courts to be able to ask preliminary questions to the Supreme Court in criminal cases at first instance or on appeal. Prejudicial means asking a higher court for an interpretation of a particular rule of law before the court itself makes a decision. 

Since October 2022, a law has actually come into force, by which the judge of facts should, within a short period of time (5-6 months), receive from the Supreme Court an answer necessary to make the (correct) decision in the case before him.   

Advantages of this new procedure

The preliminary ruling procedure could lead to a better final judgment. Better in the sense of unity of law, serving legal development and/or legal protection, and thus in the interest of the accused, public prosecutor, victim(s), judiciary and/or society. The accused may benefit directly, at least if the manner of answering the legal question is favourable to him. The accused would not have to wait for the Supreme Court to rule after years. There also needs to be less uncertainty in cases where different courts or tribunals have different opinions on a particular legal problem. If it is clear at the time of the ruling here what the Supreme Court thinks about an issue, this can also help in the decision whether or not to appeal. 

Preliminary ruling conditions. 

Not every question needs to be answered by the Supreme Court. It must be a question to which the court needs an answer in order to reach a decision. In addition, the question must be given special weight, for example because the question is involved in a mega-case or in several cases simultaneously. If the Supreme Court considers the question, the prosecution and the lawyer of the litigant concerned are given the opportunity to comment. 

First proceedings appear to have begun

Quite soon after the section of the law came into force, several courts indicated their intention to use the power. At issue is whether data acquired after a hack abroad at servers of Encrochat and Sky ECC are usable for evidence. A question before us is to what extent the interstate reliance principle might preclude a review of legality. At the time of writing, the preliminary question has not yet been finally formulated and submitted. What is clear, however, is that this is an important question, which in many cases will be litigated up to the Supreme Court, or the European Court of Human Rights, if need be. In itself, therefore, it is positive for legal certainty and legal unity that the Supreme Court can rule on this at an earlier stage. Namely during the period when the case is still before the courts of fact. 

If the final line of questioning was not to the defence's liking, it still means that the way to the Court of Appeal and Supreme Court could still be made. Unless, of course, the answer still resulted in a favourable outcome for the accused.

 Mr. D.M. Penn