Inside Police Custody 2 4.3 Exercising the right to a lawyer The Directive provides that member states must make necessary arrangements to ensure that suspects and accused persons who are deprived of their liberty are in a position to exercise the right of access to a lawyer effectively (Art. 3(4)). Further, it provides that, without prejudice to national laws requiring mandatory presence or assistance of a lawyer, member states must ensure that in relation to any waiver of the right, the suspect or accused person has been provided, orally or in writing, with clear and sufficient information in simple and understandable language about the content of the right and the possible consequences of waiving it, and that any waiver is given voluntarily and unequivocally (Art. 9(1)). This is reinforced by a requirement that a waiver must be noted, including the circumstances under which waiver was given, using a recording procedure in accordance with the laws of the country concerned (Art. 9(2)). Yet, whilst the law in most of the countries in the study provides that suspects who are arrested or detained have a right of access to a lawyer at the investigative stage, in most of them (especially those that do not have provisions for mandatory defence), a relatively small proportion of arrested and/or detained suspects actually have a lawyer during their initial detention. Some of the countries in the study, for example, Austria and Lithuania, have faithfully transposed the Directive requirements regarding waiver. However, others have not. In Hungary and Poland, whilst the law requires that a detained suspect must be informed of the right to a lawyer, it does not require that they be informed of the content of that right, nor of their right to waive it. In Romania, there is no legal obligation on the police to explain the consequences of waiver. This failure in transposition is exacerbated in some countries by the fact that either there is no requirement to record the process, or that any requirement that does exist is not observed in practice; for example, in Slovenia. There is clear evidence, in respect of those countries that have not adequately transposed the relevant provisions, that this can contribute to detained suspects not being able to make a free and informed choice about whether to exercise their right to a lawyer. In Slovenia, researchers observed the police in a number of cases to refuse to contact a lawyer where the suspect had requested a state funded lawyer; and the researchers concluded that waiver is not, in effect, voluntary for those who cannot afford to pay for a lawyer. In Hungary, there is evidence that some police officers pressurise suspects to waive their right to have a lawyer present in interrogations, and also seek to undermine the right of access by interviewing suspects as witnesses. By way of contrast, In Spain, where legal assistance is mandatory, researchers observed no case where the police sought to influence the decision made by a suspect (regarding whether to appoint a private or a duty lawyer), nor offer a recommendation as to a particular lawyer. Whilst adequately regulating the process by which suspects choose whether to exercise their right to a lawyer reduces the types of problems identified above, it does not necessarily eradicate them. This may because, as was found in Lithuania, there are still instances where the police seek to discourage suspects from exercising their right to a lawyer. However, the decision whether to exercise the right of access to a lawyer is influenced not only by the police, but also by other factors. Lack of clarity about entitlement to legal aid, coupled with concern about cost, is clearly an instrumental factor. The prospect of delay is another, exacerbated by the fact that in a number of countries, it is difficult to find competent lawyers willing and able to attend the police station at short notice, especially outside of office hours. A factor, in some countries, is doubt about whether a lawyer can, or will be willing to, provide effective assistance to a detained suspect. Such doubt may be encouraged by the police, and is sometimes a doubt shared by lawyers, particularly where the provisions on disclosure of case-related information are such that lawyers are able to obtain little relevant information prior to police interrogations. A further factor, identified in 47