II – WAIVER A. THE ISSUE We presented above the ‘core issue’ and the ‘core device’ for situations where a violation of the Directive can actually be established (ie. where access to a lawyer was denied). However, we focused on two more exploratory areas (participation of the lawyer in questioning, and cross-border issues) because it seems relatively unlikely that there will be that many straightforward violations of the Directive. By and large, national law in most Member States already does provide for access to a lawyer in questioning, and where violations arise there should be simple arguments available under the national procedural law so there will be little need to rely upon the Directive. Much more common is the concern that the right, though available in law and practice, is ‘waived’ in circumstances which cast doubt upon the waiver’s reliability. This is one of LEAP’s biggest defence rights concerns. The following concerns have been expressed:  The manner in which rights are notified means suspects do not sufficiently appreciate the importance of obtaining legal advice, or the consequences of renouncing the right.  Police incentivise the waiver of the right of access to a lawyer by emphasising the delays and complication that will arise from asking for a lawyer.  Rules of evidence ascribe irrebuttable probative value to police records indicating the waiver was given freely, so that it is impossible to argue otherwise. The existing ECtHR case-law, reviewed below, includes fairly comprehensive standards requiring the waiver to be given unequivocally, knowingly and intelligently before it can be considered effective. However, it appears that at present national laws do not provide sufficient grounds for arguing that the waiver was ineffective. On its face, Article 9 of the Directive appears to do little more than reiterate the ECHR standard but we believe there are arguments worth exploring. It should be noted that this part overlaps to some extent with the Right to Information Directive; occasional reference is made below to existing comments in the Toolkit on the Right to Information Directive. B. THE ECHR BASELINE The core principles were reviewed in the Toolkit on the Right to Information Directive but we reproduce them here. These are principles applicable generally under Article 6: other fair trial rights, eg. the right to be present at trial or the right to silence, can be waived too, and the principles below apply whatever specific right is waived. But, as the ECtHR itself notes (see below), they are particularly relevant in relatoin to the right of access to a lawyer protected by Article 6(3)(c). ‘Neither the letter nor the spirit of Article 6 prevents a person from waiving of his own free will, either expressly or tacitly, entitlement to the guarantees of a fair trial. However, if it is to be effective for Convention purposes, a waiver of the right must be established in an unequivocal manner and be attended by minimum safeguards (…) A 22