The right to legal advice as an element of the right to a fair hearing in criminal proceedings

Abstract

In the light of the interpretation, adopted by the European Court of Human Rights, of Art. 6 of the European Convention on Human Rights, particularly in Murray vs. United Kingdom, the Maltese legislator has proposed the introduction into the Maltese Criminal Code of the right to legal advice at police interrogation stage. (Art. 355AT of Act III of 2002). This thesis will seek to provide some background into why this provision was introduced. Furthermore, a brief analysis of the relevant article will be undertaken. However the main focus of this thesis will be a thorough discussion of the effects of this new right in relation to exclusionary rules of evidence under criminal procedure and any possible impact on the right to a fair hearing. In particular, the question as to whether incompetent, or inadequate, advice and assistance to the accused at police interrogation stage may provide a ground for the exclusion of evidence, will be dealt with in great depth, basing oneself on the argument that fairness had been compromised by such inadequacy. This argument has been raised and upheld in a number of recent Crown Court cases in England. Counsel for the accused based their arguments on Section 78 of the Police and Criminal Evidence Act 1984. The rules emanating from this particular English statute provision would have to be compared and contrasted with the relative Maltese provisions. Maltese judgements relating to exclusionary rules of evidence would have to be discussed in an attempt at arriving at the possible position the local courts would adopt should such a matter be raised. A comparative law exercise would then have to be carried out in order to identify the inadequacies, if any, of the Maltese system and proposals put forward to remedy these inadequacies. The list of issues to be dealt with include the legal arguments as to how far should the State suffer the effects of the incompetence of the lawyer freely chosen by the accused. (Artico v. Italy [1980] and Kamasinski v. Austria [ 1989]) Should the lawyer be allowed to be present during police interrogation or should the right to legal advice be limited to the right to freely consult with one's lawyer prior to such interrogation? Is the maximum 36 hrs. period from arrest too much of a restriction on the right to legal advice? Should this police discretion be further curtailed? What effects would incompetent legal advice have besides exclusion of evidence, particularly in the light of possible civil law actions and Bar Association disciplinary measures?!