In the first blog in this series, we discussed the reversal of the reasonable suspicion standard in relation to bulk data. In the second blog, we argued that the filtering of legally privileged information is not a task for the public prosecutor. This third blog focuses on the retention obligation. What at first glance appears to be a practical concession to the defence, on closer examination raises serious questions about the actual protection of legal professional privilege.
Destruction as a safeguard: today's starting point
Current Dutch law is unambiguous on this point. Once an investigating judge rules that certain material falls within the scope of legal professional privilege, that material is destroyed. Destruction is a substantive safeguard: the information disappears permanently from the criminal justice system and can no longer feed into an investigation or prosecution. Privilege holders and their clients can rely on a simple guarantee: once material is recognised as privileged, it becomes genuinely unreachable. The legislative proposal abandons that guarantee.
From destruction to retention: a fundamental shift
Under the proposed Article 2.7.62b(1), the public prosecutor would be required to retain any material reasonably suspected of falling within functional legal professional privilege, in a manner that prevents anyone other than the investigating judge from accessing it.
This retention duty is drawn broadly. It applies not only where the prosecutor has referred the material to the investigating judge (or intends to), but also where the prosecutor does not seek a ruling at all - for example, because access is considered irrelevant to the investigation, or because the prosecutor does not expect the judge to decide otherwise.
What is more: it continues to apply even after the investigating judge has already ruled that the material must remain off-limits.
In other words, the material stays within the criminal justice system, in the hands of the party with the strongest incentive to gain access to it: the public prosecutor.
The explanatory memorandum has little to say about how retained material would be safeguarded in practice, whether technically, organisationally or procedurally. That detail is deferred to a future Order in Council. This is a significant gap. Experience with the current 'greying-out' of confidential material shows that information which investigators were not supposed to access has nonetheless been accessed. The legislature would have done well to set out clear safeguards from the outset, rather than leaving this to secondary legislation.
Three justifications for retention, none of them convincing
The explanatory memorandum offers three reasons why privileged material should now be retained rather than destroyed.
Retention 'for the defence': a hollow justification
The first two reasons are presented as being in the defence's interest. According to the legislature, the defence might argue that material excluded from the investigation sheds new light on material that was included. The defence might also argue that material the prosecutor excluded as irrelevant is, in fact, exculpatory and was wrongly withheld. In both scenarios, destruction would prevent that argument from ever being tested.
Neither argument is convincing. The defence is generally well placed to introduce privileged material itself. What that requires is not retention by the prosecution, but the ability to verify which material has been filtered out in the first place, something the current proposal conspicuously fails to provide. If the legislature is genuinely concerned that material relevant to the defence might otherwise fall through the cracks, being destroyed and made permanently inaccessible, the more logical solution is to place responsibility for retention with the defence itself, or, failing that, with the investigating judge. Neither option features in the proposal.
Retention 'for the investigation': privileged material kept in reserve
The third reason for retention – the reason which seems to be the legislator's main goal – is that the prosecution wants the option to revisit its own earlier decision that the interests of the investigation do not require certain data to be examined. Once destroyed, that material can no longer be put before the investigating judge at all.
Given the investigating judge's statutory test (Article 2.7.61a(1) in conjunction with Article 2.7.61), revisiting that decision would only be relevant in one of the following scenarios:
- Despite an earlier finding of reasonable suspicion, privilege turns out not to apply after all;
- The privilege holder consents to disclosure;
- Exceptional circumstances mean the public interest in establishing the truth outweighs the public interest in protecting privilege; or
- The material itself forms the object of the offence or was used to commit it (corpora et instrumenta delicti).
These are, by design, exceptional scenarios that are expected to arise rarely.
The mere fact that one of these scenarios could arise in relation to material the prosecution earlier considered irrelevant is, on its own, a weak basis for retaining it. The starting point, including under the new Code of Criminal Procedure, is that privileged material should not be seized at all. Retention instead of destruction erodes that starting point and needs a solid justification of its own. A purely theoretical chance that privilege will not apply, or could later be overridden, does not meet that bar.
It is equally hard to follow why the retention duty extends to all privileged material, including material the investigating judge has already ruled off-limits.
Conclusion: the exception becomes the rule
With this proposal, the legislature turns a narrow exception into the general rule. A purely theoretical possibility that privilege will not apply, that the privilege holder will consent, or that exceptional circumstances will justify an override, becomes the justification for a retention duty covering all privileged material.
That outcome is not only disproportionate, it is also inconsistent with the legislature's own reasoning elsewhere. After all, the legislature itself takes the position that the mere possibility of privileged material being present somewhere within a bulk dataset does not, on its own, justify treating any specific item in that dataset as privileged. Taken together, these two positions illustrate a pattern: the legislature consistently allows investigative interests to prevail over the protection of legal privilege.
Read more in this series
In earlier blogs in this series, we examined the proposal to reverse the burden of reasonable suspicion for bulk data and argued that filtering out privileged material should not be a task for the public prosecutor.
This blog addresses the proposed retention duty itself. The next blog in the series will cover the lack of any mechanism for the defence to verify how the prosecutor has filtered such material.
If you have questions about what this proposal could mean for your organisation or your clients, our Corporate Crime & Business Integrity team is happy to help.
