D. USING THE DIRECTIVE IN PRACTICE 1. Access to the case file at the point of questioning a. The debate as to the requirements of Article 7(1) Whether Article 7(1) requires access to case the file at the police station is something of a ‘hot topic’ at the time of writing. Organised groups of lawyers in France and Spain have taken the view that this provision implies a right of access to the (police) file which is essential to enable the suspect, through his lawyer, to contest the grounds for the person’s arrest, initially at the police station itself. Senior courts have not yet ruled on this. Concerns exist, among police and prosecutors, as to the potential impact of a requirement to provide evidence at this stage, in particular as it could lead to delays which would use up precious time in a period usually limited to between 24 and 72 hours before a person must be brought before a judge. Doubt also arises from Recital 30, which provides: ‘Documents and, where appropriate, photographs, audio and video recordings, which are essential to challenging effectively the lawfulness of an arrest or detention of suspects or accused persons in accordance with national law, should be made available to suspects or accused persons or to their lawyers at the latest before a competent judicial authority is called to decide upon the lawfulness of the arrest or detention in accordance with Article 5(4) ECHR’ Whilst the specification of the sort of material may be helpful, the reference to Article 5(4) ECHR suggests that access to this material becomes necessarily required only at the point when the arrest is judicially reviewed, which would imply no development of the ECtHR position (see p. 33 above). b. Fair Trials’ view: Article 7(1) requires access at the point of questioning Fair Trials encourages you to take the expansive view of Article 7(1). We believe that, fundamentally, the question of the provision of documents upon arrest is subject to a general misunderstanding due to the limited extent to which it is covered by Article 6 case-law of the ECtHR. Article 6 exists to protect the fairness of the trial, and the ‘equality of arms’ requirement applies at trial; pre-trial proceedings fall within the scope of Article 6 only to the extent that they impact upon the fairness of the proceedings, restricting the extent to which disclosure at the police station can enter into the ECtHR’s consideration. Article 5(4) is limited to the judicial review of initial arrest, and can require equality of arms only at that stage. As a result, a general view has arisen that equality of arms is essentially a characteristic of judicial procedure, and that police are essentially free to withhold evidence and use the questioning phase as a purely investigative opportunity. This ignores the fact that public authority has been delegated to the police for them to interfere with a person’s liberty, which the person has the right to challenge. Fair Trials suggests initial questioning is, aside an investigative act, also the point at which that authority should provide the person with sufficient knowledge of the grounds of their arrest to enable them to form a view as to whether to speak and make their views known or challenge the arrest before a court. If it is to be a useful opportunity, both the reasons for the arrest and key evidence should be made available. 36