III – DEROGATIONS A. THE ISSUE Are there circumstances in which a person, despite wishing to be assisted by a lawyer, can be questioned without one? This is a live issue but the answer in the Directive appears to be that there are very limited circumstances in which this might happen. This is not currently an issue which has raised major concerns within LEAP, save in some specific jurisdictions (Spain and the United Kingdom), but it appears particularly important in light of current threats facing Europe which may at the very least lead to the increased use of existing exceptions in national law or, potentially, the creation of further possibilities of this kind. The issue is very simple: access to a lawyer is denied, meaning this key protection against selfincrimination is removed, but this time there is a legal basis for it. The key question is when this can be done, and what use may be made of the evidence obtained in the lawyer’s absence. B. THE ECHR BASELINE 1. The core principle and debate There is, at present, very little case-law upon which to rely for this purpose. The core statement in Salduz includes additional text (omitted earlier) relating to possible exceptions. In full, it reads: 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, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 (…) 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 openly recognises that there may be situations in which access to a lawyer might be validly refused. However, there is debate (as yet unresolved) as to the expression ‘in principle’. Does it mean that the rule is subject to an exception, whereby evidence obtained in the justified absence of a lawyer can validly be used for a conviction? Or does it mean that as an issue of principle, statements obtained in absence of a lawyer cannot be used for a conviction? 2. The case of Ibrahim and Others v the United Kingdom There has only been one case to date in which the ECtHR has found ‘compelling reasons’ for restricting the right to exist, and it considered that with the presence of attendant safeguards it was permissible for incriminating statements made by suspects in the absence of a lawyer to be used for a conviction without infringing Article 6 ECHR. 29