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Outward appearance in Dutch criminal law. What is the suspect up to?

On 27 February 1976, two men wearing motorcycle helmets and carrying loaded guns ring the door of temping agency Cito. A security van has just delivered cash. The suspect later claims in court that he and his friend were just doing a ‘dress rehearsal’ – preparing ahead in other words, but not an actual attempt at armed robbery. The court did not accept this defence and found the suspect guilty of attempted armed robbery. Later, the Supreme Court ruled that the court could indeed convict the suspect because outward appearance indicated his intent to carry out a crime. PhD candidate Sara Arendse investigated ‘outward appearance’ and will defend her thesis on 25 November 2020.

Courts cannot read the thoughts of suspects, or foresee the future, says external PhD candidate Sara Arendse. 'If a court is asked what the intention of the suspect was (intent) or what exactly the suspect was up to when he was caught (attempt, premeditation), it will have to find some other way to establish whether the suspect was conducting a criminal act. In that case, the court sometimes looks at outward appearance. The court considers the behaviour of the suspect to determine what was going on.’

Arendse says this is no simple task. 'Similar behaviour can indicate different criminal offences. For instance, if a person points a gun at another person, it could indicate attempted murder or manslaughter, but it could also constitute a threat which carries a less severe sentence. If weapons are found in a person’s car, the suspect could be on the way to a bank raid, but it is also possible that they trade in weapons.' So the court will have to look at other circumstances besides behaviour. Are there other clues that say something about what the suspect was up to? For example, does the suspect have items with him like a map, which could indicate something about his plans? Or could recorded conversations or the suspect’s past behaviour say more about those plans?

Famous examples in which outward appearance played a role

The Cito case mentioned above (ECLI:NL:HR:1978:AC6373, NJ 1979/52) is the first ruling that referred to outward appearance. The term is used in the context of attempt. Other well-known examples of rulings in which outward appearance is referred to are:

  • The judgment in HIV I (ECLI:NL:HR:2003:AE9049, NJ 2003/552). Outward appearance was considered to answer the question whether a suspect who had unprotected sex with a person while knowing he was HIV infected, had acted with conditional intent to take the other person’s life.
  • The judgment in Samir A. (ECLI:NL:HR:2007:AZ0213). In this case the Supreme Court quashed the judgment of the court of appeal. It had acquitted the suspect of preparing an attack because what he had undertaken up to that moment ‘was at such an early stage and so primitive and inept, that it could not form a serious threat (in the foreseeable future)’. According to the Supreme Court, the court had applied an incorrect criterion. It should have checked whether items found with the suspect at the time of his actions ‘based on outward appearance could have been used for the criminal purpose the suspect had in mind by using the items’.

Arendse has analysed in which cases the court considers outward appearance and the circumstances the court then looks at. 'It was unclear what outward appearance is exactly and when it could be applied. Of course, it can make quite a difference whether the court applies outward appearance or some other method to come to its decision. This can lead to different outcomes. It can also make a difference whether the court defines the threshold as being outward appearance. If the threshold is too high, it becomes more difficult to convict people who plead not guilty or remain silent for example. On the other hand, there is a risk that people are then convicted who were not actually planning to commit a crime. Or perhaps suspects are found guilty of a much more serious offence such as murder or manslaughter instead of just threatening to commit these offences.' So it is important in relation to liability under criminal law whether outward appearance is applied and how it is applied. It is also important to understand this, so that lawyers, public prosecutors, and courts can approach outward appearance in the same way. This is important for equality before the law and legal certainty, says the PhD candidate.


The research established that on the whole outward appearance is applied consistently and systematically in a certain doctrine (attempt, intent, premeditation, self-defence). Common features can also be identified beyond this doctrine. 'Using outward appearance, based on behaviour and additional circumstances, the court each time considers the consequence or purpose of the behaviour. This is also referred to as the finality of the behaviour. But the research also shows that the courts do not consider this aspect alone. In the case of intent, the court only applies outward appearance if other evidence is lacking about what the suspect was thinking; a kind of ‘next best’ option. In the case of attempt and premeditation, it is standard practice for the court to consider outward appearance, but it also has to look at other circumstances. For instance, it considers whether the suspect’s plans had been implemented to the extent that they would already be punishable. In the Netherlands, you can’t be punished for just having evil plans.' 

The PhD thesis provides an overview of judgments of the Supreme Court on outward appearance. It shows when outward appearance is used and the relevant circumstances. Courts, public prosecutors, and lawyers can use this overview to apply outward appearance in new cases enabling them to apply and interpret the concept consistently. By clarifying what outward appearance is and how it can be used, the research provides better insights into the consequences of applying outward appearance in the criminal law context. The research is therefore not only relevant for academia, but also for criminal law practice.

Supervisor Professor C.P.M. Cleiren on Sara Arendse’s research:

'Sara Arendse completed her master’s degree in law in 2011 (specialising in criminal law and criminal procedure) and graduated cum laude. I met her when she was a first-year student in my tutor group. She stood out even then – small, fearless, and very clever. In the course of her studies her focus turned to criminal law. She worked for around five years (first as a student and then after leaving university) as editorial secretary for the publications Tekst & Commentaar Strafrecht and Tekst & Commentaar Strafvordering, of which I am editor. Criminal law also figures prominently in her current position.

Our paths crossed again when she developed an interest in further study and academia. She decided to conduct PhD research besides working – not something to be considered lightly. Jeroen ten Voorde and I decided to supervise her and never looked back. To us, she was more than just a PhD candidate. She was also a valued and inspiring discussion partner for us both. 

The issue of outward appearance in criminal law is complex and unchartered, but it is right down her street. Her research focusses on the use of this concept by the Supreme Court. In legal practice, it is a very important concept to prove intent or attempt in relation to serious offences. Up to now, its use and significance has not been studied. Sara has achieved this and she identified and analysed the role, function, and scope of the concept in the context of criminal law issues, placing the outcomes of her research in criminal law dogmatics. To do so, she applies a sharp analytical view paying attention to both the facts as well as the law. Her research and ultimate conclusions and recommendations will allow professionals involved in criminal law to discover what the concept of outward appearance has to offer. The book will soon find its way to legal practice. At the same time, the research makes a tremendous contribution to the academic study of criminal law, in both method and substance.'

Text: Floris van den Driesche
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