An analysis of Article 3(3)(b) of Directive 2013/48/EU and its impact on Maltese Criminal Law of Procedure

Abstract

The issue of legal assistance has been imperative in the development to ensure a fair trial. Indeed, the present study primarily focuses on the right to legal assistance during the police interrogation, collectively with its implications, with the central premise being Malta. The intended purpose is, to highlight the main variations in implementing the right to legal assistance- in various jurisdictions and its application by the Maltese Courts, see its implication with regards to the Police, and examine its implications in a small country like Malta. In pursuance of this aim, Article 3(3)(b) of Directive 2013/48/EU is taken into account, together with further legislation and judgements of the European Court of Human Rights. An analysis is then made regarding the application of the aforementioned right by the Maltese Courts, mainly the criterion of vulnerability. Following this, the implementation of legal assistance during police interrogation and its effect on the Police investigation, together with the arguments embracing and opposing it, are taken into consideration. Subsequently, the effects such right to legal assistance during the police interrogation would have on the Maltese system, is looked at- it being a small state, with reflection on the notion of conflict of interest. The conclusion encompasses a recapitulation of the main arguments. While concurring that the right to legal assistance during police interrogation is significant to ensure a fair trial, an ad hoc system needs to be put in place for Malta, to ensure that such extended right ultimately does not infringe on the equality of arms principle and/or backfires against the suspect himself.