Implementation of this principle has not been straightforward. We noted in the Using EU Law Toolkit that the Dutch Supreme Court had, at the time of publication of that document, taken the view that the right of the lawyer to be present in questioning under Dutch law, despite the above case-law which appears fairly clear. In December 2015, it reversed its position, finding that there was a right for a suspect to have their lawyer present in questioning. It appears that one of the main reasons for this was the inevitability of that development happening anyway because of the Driective.25 The next phase in this discussion seems likely to focus on the extent of the lawyer’s participation in questioning. The ECtHR case-law has not, to our knowledge, covered this point in detail and the Directive may provide a useful basis for argument if restrictions are placed on lawyers’ intervention in your Member State. Article 3(3)(b) of the Directive provides: 3. The right of access to a lawyer shall entail the following: (…) (b) Member States shall ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when questioned. Such participation shall be in accordance with procedures under national law, provided that such procedures do not prejudice the effective exercise and essence of the right concerned. Where a lawyer participates during questioning, the fact that such participation has taken place shall be noted using the recording procedure in accordance with the law of the Member State concerned; Recital 25 in the preamble to the Directive essentially repeats the content of the operative provision but includes one additional detail: (25) (…) During questioning by the police or by another law enforcement or judicial authority of the suspect or accused person or in a court hearing, the lawyer may, inter alia, in accordance with such procedures, ask questions, request clarification and make statements, which should be recorded in accordance with national law. If the issue concerns your participation in questioning, it must be the case that you are physically present at the point of questioning (as opposed to the sort of violation which results in your being absent outright). This means that there is action that you can take at that point to try to ensure that the violation of the Directive is properly identified as such at that stage, so at to rely on this later. i. Identify and document the violation What are you looking for? What constitutes a violation? The provision includes the standard reference to national law, so it is clear that the Directive is not setting exhaustive rules about participation in questioning: this is left to each system. However, there is also a requirement to ensure that such procedures do not prejudice the effective exercise and essence of the right concerned. What is meant by ‘the right concerned’ is not totally clear. But it should be borne in mind 25 See G. Jansen [LEAP member] ‘The legal struggle for the right to access a lawyer in the Netherlands’, March 2016, available at: https://www.fairtrials.org/press/guest-post-the-legal-struggle-for-the-right-to-access-to-alawyer-in-the-netherlands/. An English version of the decision is available on request from Fair Trials. 17