what is already established about the role of the lawyer – including, but not limited to, securing the suspect’s right to silence and not to incriminate himself (see the ECtHR case-law discussed above). It seems particularly arguable that limitations upon the lawyer’s participation which, in effect, prevent the lawyer protecting the suspect’s right to silence and not to incriminate himself would be inconsistent with the Directive. This would include, in particular, rules which mean a lawyer is unable practically to advise silence (as such) in questioning. This seems particularly important where a lawyer’s initial advice, in private consultation, is to advise silence; if the effect of the questioning is to cause a suspect to change their mind and give evidence, particularly self-incriminatory evidence, any restrictions placed upon the lawyer’s role would be particularly worthy of consideration. But you should also bear in mind the broad meaning of ‘incriminating statements’ identified above (including denials, statements of facts etc.). If the lawyer identifies issues (eg. an answer given which could potentially be used against the suspect) but is not able to address it through his participation, this might raise an issue too. You would, in particular, expect this to be addressed in the treatment of the evidence obtained in this way (see the comments on Article 12 below). We would suggest that you look both at the law and how it is applied in your case.     Look at the law: Does the national rule fundamentally limit the lawyer’s ability to participate? Is the lawyer’s freedom to intervene clearly articulated in the law? Does the national rule provide powers for excluding the lawyer on the basis of their interference with the questioning?  Look at what actually happens in the questioning:  Do the questions lead to the suspect departing from his initial choice to remain silent?  Are you able to advise the client not to answer specific questions?  Are you able to ask clarificatory questions in respect of areas where the answers given by the suspect risk being considered incriminatory? These are ideas about what to look for in terms of how the restriction on your participation may result in a breach of the suspect’s rights. There is then a separate question as to what steps you wish to take to ensure your concerns are noted. The main point here, we suggest, is to ensure that the fact of the interference with your participation and its incompatibility with the Directive is noted at this stage whilst being mindful of the need to protect the privilege of your own advice.  Get the issue recorded  Take a clear note of any intention expressed by the client not to answer questions during the questioning.  Take your own notes of ways in which your participation is impeded.  Have a copy of the Directive with you and show the officer Article 3(3)(b).  Note the questions which you might have wanted to ask to clarify those of the questioning authority, or objections you had to the phrasing of certain questions, if you were not allowed to make these.  Ask for your observations to be noted clearly in the records taken by the questioning authority, including references to the Directive if possible. 18