1. Establishing what actually happened You will be well familiar with the sorts of circumstances which clients will say led them to waive their right to a lawyer under national law: police pressure; indications of more lenient disposals if a lawyer is not sought etc. The key is to collect this information with the standards of the Directive in mind:  Find out from your client what happened and organise the information in light of the requirements of the Directive and underlying case-law:  Look at what substantive information was given. In many cases, you will be able to consider the Letter of Rights: does this adequately reflect the content of the right and the consequences of waiving it? For example, does it specify that a person would have the right to meet in private with their lawyer and discuss their case?  Look at the circumstances: bear in mind recital 39 of the Directive; the line of ECtHR case-law above; and the Commission recommendation on vulnerable suspects. Are there characteristics of the person which ought to have been taken into account in the assessment of a purported waiver?  Look at the record made. This is required to cover the ‘circumstances under which the waiver was given’. You would expect this to, for instance, confirm that the person was given a Letter of Rights and an opportunity to consider it; to address how account was taken of specific vulnerabilities of the accused (eg. whether a medical examination was carried out or the support of a third party sought).  Get your client’s version of events. This piece of evidence will be important for the purposes of challenging the validity of the waiver that is recorded. Find out who said what, in what context, how much of it was recorded etc. 2. Challenging the waiver a. Where to raise the point As noted above, the essential argument is that because the waiver is invalid, the absence of a lawyer is in fact an infringement of Article 3 of the Directive, so the evidence should be treated accordingly under Article 12 / the national remedies system. This is, therefore, a point that you will raise before the relevant court: a pre-trial instance, or the trial court itself if that is where procedural violations are addressed. The same arguments would equally feature in any appeal based on the Directive if the relevant first-instance forum takes an inappropriate approach to assessing the waiver.  Raise your points in the same place you would normally argue that the absence of a lawyer vitiates the procedural act concerned and the evidence obtained, wherever this be. The remedy you seek is the same. b. The arguments to make The arguments should, in our view, be two-fold: they should highlight any failures to comply with the safeguards specified in the Directive (failure to provide full information, take account of vulnerabilities etc.); and they should be based on the client’s own alternative record. These are essentially factual arguments (based on your review of the facts as above) but there are some general legal points which can be made: 26