 Take action at the pre-trial stage, if you are there  Insist upon being given access to the case file prior to questioning by the police, prosecutor or investigating judge, mentioning that you rely on the Directive;  Explain that this access is necessary in order to enable you to assess the lawfulness of the arrest and your client to make his views known on the substance of the allegation, subject to his right to silence;  Ensure your request is recorded in any police protocols, mentioning the Directive. If the access is not provided, consider advising silence until the contents of the file has been supplied, and ensure the reasons for the refusal of access are recorded. Explain how this refusal is undermining your ability to advise the client usefully and forcing the client to make decisions without sufficient illumination as to their potential consequences.  Take action to challenge a violation before a court, if access was not provided, in accordance with the general approach set out in the ‘Using EU Law’ Toolkit.  Explain to the court why you believe Article 7(1) provides a right of access to the police case file prior to questioning;  Establish that the right of access has not been granted in accordance with that requirement (this should be simple if the national procedure rules do not allow access to the case file at this point, such that the denial of access is simply the application of the ordinary procedure).  Establish why this has damaged your client’s interests. If you have a reason to be seeking a remedy (e.g. a confession was made or the right to silence was not exercised) this may be self-evident.  On the basis of the violation of the Directive, seek the application of a remedy (invalidity of the act, exclusion of the evidence etc.).  Show the court information about the discussion of Article 7(1) in different jurisdictions, demonstrating that it is an issue in need of clarification and suggest that the court should seek a reference for preliminary ruling to the CJEU. 2. Access to the case file and effective judicial review of arrest/detention The more straightforward challenge relates to the provision of access to the case file after initial questioning, as the investigation progresses. In this regard, the starting point is Article 5(4) ECHR which, as we have seen, requires access to those materials which are necessary for challenging detention in order to ensure equality of arms in the judicial review. Despite the relatively clear nature of the case-law on Article 5(4), respect for this standard has not always been very good, with some laws and practices enabling restrictions on access to the file even when the person is detained. The Estonian procedural code, for instance, provides for a right of access to documents necessary for challenging detention but allows the prosecutor to restrict this right for overriding reasons. And even where the issue appeared to have been solved by legislation, problems may persist in practice. In Poland, for instance, new provisions require the prosecutor to disclose evidence mentioned in the detention motion, which may risk certain material evidence not being mentioned and thus not made available. We look at how to use Article 7(1) to tackle this. 38