 the suspect understands his rights. Think about factors established in the ECtHR case-law (p. 14 above) e.g. drug dependency, youth etc. This will assist you later on if you need to claim a remedy for the failure to comply with the Directive, should you have a reason to do so. b. When assisting a witness who becomes a suspect Though this may be more or less common depending on the jurisdiction, it may be that you are present when a person is questioned as a witness when they are, in reality, suspected. This calls for action to ensure not only that they are advised of their rights, but also that they are told what the allegation against them is. For this reason we examine the special case of witnesses after we have covered both notification of rights and notification of accusations for ordinary suspects (see Part II). 2. Challenging the failure to notify rights More likely is that you will face the situation (later in the proceedings) when the client’s interests have already been prejudiced by procedural acts (in particular police questioning) taken without the suspect being notified of his rights in accordance with the Directive. This is most likely going to be the case when the suspect waived the right to legal assistance, meaning there was no one there to help him exercise his rights. a. Paradigm case We begin by considering the relatively simple situation in which the client has not been notified of rights at all, and made incriminating statements in the initial questioning. Assume that this oversight is visible from the record established by the police. When (at a later stage) you are mandated to act in the case, you can say that there has been a clear violation of the Directive and claim a remedy (invalidity of the act, disregarding the evidence etc.) as there has been a breach of defence rights. You can see a clear ‘link’ here between an established violation of the Directive and the need for a remedy to ensure the useful effect of the Directive. This would also extend to the ‘fruit of the poisoned tree’, i.e. subsequent procedural acts which were made possible only by the act which infringed the Directive. This is helpful to bear in mind as you consider more realistic examples. b. Establish how notification was ineffective As mentioned above, the Directive does not govern the substantive rights, in particular the right to silence or of access to a lawyer. However, the ECtHR recognises the ineffective notification of rights as capable of creating unfairness on its own as it makes any subsequent renunciation of rights and decisions taken as to the defence unreliable. The same approach should apply with the Directive: if prejudice arises due to the ineffective notification of rights, a remedial obligation arises in order to safeguard the fairness of the proceedings. i. Form and language A situation commonly described is that in which the suspect is advised of his rights but in such a way that he does not truly understand them, and as a result fails to exercise them. Bear in mind the 19