provision is to ensure that the detention decision is not taken on the basis of evidence which is not seen by the detained person, and that evidence tending against detention is not overlooked due to the suspect’s inability to base arguments upon it. Access should therefore be provided not just to documents mentioned by the prosecutor, but also others which the court considers have a bearing upon its decision. This means the court should consider of its own motion whether there are other parts of the file which are germane to its decision, and ensure these are supplied to the defence.  It follows from the above that, in order to ensure observance of the Charter right to liberty (Article 6), which incorporates the judicial review obligations in the ECtHR case-law, the court should exclude the prosecution from relying upon evidence which has not been disclosed and order the disclosure of other evidence it considers material. 3. Access to the case file at the pre-trial stage – irrespective of detention a. The gap in the ECHR case-law Irrespective of the detention of the client, does the Directive provide a right of access to the case file at the pre-trial stage? As seen above, the ECtHR has recognised that practical restrictions on the ‘time and facilities to prepare a defence’ prior to trial can lead to violations of Article 6(3)(b) ECHR if they make trial preparation impossible.61 However, the ECtHR case-law is not very helpful in terms of seeking access to the case file earlier in the proceedings. The case-law indicates that notification of accusations, which must happen earlier in proceedings, ‘need not necessarily be attended by the disclosure of supporting evidence to enable the accused to prepare for trial (…) The existence of such evidence may still be dependent on the results of an ongoing investigation’.62 Whilst this suggests that restrictions on access must be justified by reasons relating to the investigation, there is little basis for the ECtHR to comment on pre-trial restrictions. All it can do is determine, after the proceedings are over, whether any restrictions on access to the case file caused prejudice to the fairness of the proceedings as a whole. It can comment on pre-trial restrictions to the extent that these interfere with the right to effective judicial review of pre-trial detention under Article 5(4) ECHR, but there is a ‘gap’ in the Article 6 case-law. b. Fair Trials’ view: Article 7(2) requires pre -trial access, subject to the application of judicially reviewable exceptions The position under the Directive is, we believe, more helpful:  Under Article 7(3), the right of access to all material evidence under Article 7(2) is expressed as applying ‘at the latest’ upon submission of the merits of the accusation to a court. This reflects the fact that, at the point of trial, full equality of arms must be ensured. However, the rule indicated in Article 7(3) is that such access should be provided ‘in due time to allow the effective exercise of the rights of defence’, and nothing prevents this being invoked at the pre-trial stage. 61 Iglin v. Ukraine, cited above note 16, paragraph 60 ; Vyerentsov v. Ukraine, cited above note 16, paragraphs 73-76; Öcalan v. Turkey, cited above note 16, paragraph 142. 62 Haxhia v. Albania, cited above note 36, paragraph 131. 40