I – THE RIGHT OF ACCESS TO A LAWYER A. THE CORE ISSUE You will be well aware of the ‘classic’ case of a violation of the right of access to a lawyer which lies at the heart of the principles we are concerned with: a suspect is questioned by police without a lawyer, who is consequently not present to help the suspect enforce their right to silence; the suspect, as a result, makes an incriminating statement which is recorded; and this statement is used against him later in the proceedings. Salduz v. Turkey provides an example: a young suspect was arrested by police on suspicion of terrorism charges and was not given access to a lawyer (no such right existed under national law at the time). He admitted certain conduct alleged against him, but later retracted these statements. Later, the court, in assessing the merits of the case, took into account his earlier statement and found him guilty of the offence. Little more need be said about this, but we think it useful to break it down into two stages: (1) The violation of the right of access to a lawyer, which takes place at the point the right is not guaranteed, typically during police questioning; and (2) The taking into account of the incriminating statements made in absence of a lawyer later, typically by the court deciding upon guilt or innocence. As will be seen below, the ECHR approach needs both: there can be a violation of the right to a lawyer, but this will not produce a violation of Article 6 ECHR overall if the statement is not used in evidence because a remedy is duly applied (eg. exclusion of evidence). This general approach seems to be retained for the purposes of the Directive, though with some possible subtleties as we will see. B. THE ECHR BASELINE 1. The core Salduz principle We saw above the core statement concerning violations of Article 6(3)(c) in so far as that provision concerns restrictions on the right of access to a lawyer in the early stage of criminal proceedings:17 Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police (…) The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction. The statement establishes a rule with two parts: (i) access to a lawyer is required as from the first interrogation by police; and (ii) use of incriminating statements made without access to a lawyer for a conviction infringes Article 6 ECHR. As we will see below, Article 3 of the Directive seeks to articulate the first part as a rule of EU law; Article 12 reflects the second part by requiring remedies in respect of statements made in the context of violations of that rule. 17 We omit key language on exceptions which is discussed in part IV below. 10