Inside Police Custody 2 1.2.3 The Directive on the right of access to a lawyer The Directive on the right of access to a lawyer was adopted on 22 October 2013, with a transposition date of 27 November 2016.7 The Directive sets out the right of access to a lawyer, the right to have a third person informed of a deprivation of liberty and to communicate with a third person, and the right (where relevant) to communicate with consular authorities. The right of access to a lawyer Member states must ensure that suspected and accused persons have the right of access to a lawyer in such time and in such manner so as to allow the person concerned to exercise their rights of defence practically and effectively (Art. 3). Access must be allowed without delay and, in any event, must be permitted from the earliest of: (a) before questioning by the police or other law enforcement or judicial authority; (b) upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act; (c) without undue delay after deprivation of liberty; (d) where they have been summoned to appear before a court having criminal jurisdiction, in due time before the court hearing. The Directive explicitly states that suspects and accused persons must have the right to: meet their lawyer in private prior to any questioning; have a lawyer present when questioned and for the lawyer to be able to participate effectively; and, to have a lawyer present, as a minimum, at the investigative or evidence-gathering acts specified in the Directive (identity parades, confrontations and crime-scene reconstructions), where those acts are provided for under national law and the suspect or accused is required or permitted to attend. A person arrested under an EAW must have the right of access to a lawyer in the executing state. The Directive specifies that the right shall include the right: of access to a lawyer in such time and in such a manner as to allow the requested person to exercise their rights effectively and without undue delay from the time that they are deprived of their liberty; to meet and communicate with the lawyer; and the right for their lawyer to be present and, in accordance with national laws, to participate during a hearing by the executing judicial authority. The right of access to a lawyer may be waived, although this is without prejudice to national laws requiring the mandatory presence or assistance of a lawyer. However, for a waiver to be valid the suspect or accused person must have been provided, orally or in writing, with clear and sufficient information in simple and understandable language about the content of the right to a lawyer and the possible consequences of waiving it. Any waiver must be given voluntarily and unequivocally. In addition to the exception regarding minor offences (see section 1.2.4 below), there is provision for temporary derogation from the right of access to a lawyer at the pre-trial stage on the grounds of geographical remoteness (Art. 3(5)), or on the basis of specified compelling reasons (Art. 3(6)). Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed jupon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty. 7 15