Cicero gave us the maxim, Legum servi sumus ut liberi esse possimus (we are all servants of the laws in order that we may be free). It is a maxim that encapsulates the concept of the rule of law, meaning that no person is above the law, that no one can be punished by the state except for a breach of the law and that no one can be convicted of breaching the law except in the manner set forth by the law itself.
Beyond a shadow of doubt, this maxim finds its best application in criminal law. Indeed, it is the duty of every legal practitioner, be it a judge, magistrate or lawyer (prosecution or defence), to apply and interpret the law rigorously and fairly in the best interests of justice.
The position of lawyers in the criminal law field is crucial in that they play a key part in protecting the rights of the individual, whether a suspect or accused, without undermining the interests of society. Defending the rights of suspects is no easy task.
Upon arrest, certain rights, commonly referred to as habeas corpus rights, come into play. Foremost among them one finds the right to be informed of the reasons of arrest, the right to be attended to medically if required, the right not to be held incommunicado and, more importantly, the right to legal advice.
Lawyers, in other words, do not only have a vital role to play during the trial itself (ECHR application no. 13972/88, decided November 24, 1993), within the four walls of a courtroom, but are expected to be involved at an earlier stage of proceedings, more specifically during the interrogation stage (as held in Imbrioscia v Switzerland ‒ ECHR application no. 13972/88, decided November 24, 1993).
We have all heard of local and foreign instances of police impropriety, ranging from physical and emotional violence to promises of rewards or threats in eliciting confessions. The law is there to ensure a fair trial from the first instance an individual is exposed to the arm of the law. There is, after all, no sense in affording equality of arms and rules of fair trial when a person accused has already been prejudiced and forcibly or illegally constrained to confess to a crime.
Initial judgments delivered by the European Court of Human Rights, such as Salduz v Turkey (ECHR application no. 36391/02, decided November 27, 2008) and Plonka v Poland (ECHR application no. 20310/02, March 31, 2009) confirmed the fact that the presence of a lawyer at an early stage, such as the interrogation stage, was essential to ensure that the person concerned is actually subjected to a fair trial.
The rule has its exceptions. In Ibrahim v United Kingdom (application nos. 50541/08, 50571/08, 50573/08, 40351/09 [2016]) the ECHR noted there can be veritable exceptions to this rule. Two weeks after the London public-transit bombings in 2005, the accused attempted to detonate additional bombs in the London subway system and on a bus. Authorities in the United Kingdom claimed that the detentions and interrogation without access to legal representation were justified because, in the aftermath of the attempted bombing, officials were unsure if an active terror threat still existed and officials did not want a lawyer to facilitate communications with other potential accomplices who had yet to be apprehended.
The Grand Chamber of the ECHR accepted that there had been an urgent need to avert serious adverse consequences for life, liberty or physical integrity and, therefore, did not find a human rights breach for three of the applicants.
The consequences for failing to effectively provide the right to legal assistance can have serious consequences in trial. In Il-Pulizija v Paul Cutajar (June 18, 2013), the local Court of Criminal Appeal expunged an accused’s statement because during interrogation he was not afforded the right to legal advice.
Every legal practitioner has a serious and grave duty to advise his client correctly according to the circumstances- Stefano Filletti
As crucial as this right is, an equally onerous duty becomes incumbent on the legal practitioner. This duty is not only a logistical physical demand on the practitioner who has to make himself more available to persons under arrest but, more importantly, imposes a qualitative ethical requirement on the practitioner.
Every legal practitioner has the duty to assist his clients at an early stage, such as the interrogation, and to do this in the best possible manner. The practitioner is to assist the person arrested decide on how best to react to an interrogation (which will, no doubt, bear a direct impact in his trial).
The matter is not as straightforward as it may first seem on account of the fact that the right to legal advice comes at a price. The European Court of Human Rights, in Saunders v UK (ECHR, December 17, 1996), recalled that although not specifically mentioned in article 6 of the convention, the right to silence is a generally recognised international standard that lies at the heart of the notion of fair procedure under article 6. Its rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriage of justice and to the fulfillment of the aims envisaged in article 6.
The right to remain silent is sacrosanct and is even enshrined in our constitution. Indeed, trials by jury were declared null simply because reference was made by the presiding judge to the fact that the accused chose to remain silent in the face of serious and grave charges. Every person accused has the right to remain silent and this silence cannot be understood in any way as an implied admission of guilt. This is true during interrogation and at trial alike.
Every legal practitioner has a serious and grave duty to advise his client correctly according to the circumstances. A suspect person interrogated by the police may lead to the release of surprising or unexpected statements that can incriminate him. The lawyer is to weigh the evidence in the hands of the police and dispense the appropriate advice.
We all know that all that glitters is not gold. This cannot be any more true with respect to the right to legal advice. What at first seemed to be an amendment championing rights of suspect persons became a seriously onerous obligation for lawyers.
In that circumstance therefore, the conduct of the lawyer throughout the interrogation likewise will be of essence.
In conclusion, it is essential that, as servants of the law, every lawyer performs his or her duties legally and ethically in full respect of fairness and justice.
Above all, the lawyer must conduct himself in the best interests of his client and yet be loyal and true to the law and criminal justice system. This duty is expected out of each and every lawyer each and every time he or she is consulted by a client.
Stefano Filletti, is the head of department and resident lecturer in criminal law at the University of Malta. He also heads the Maltese delegation to the Council of Europe in the European Committee on Crime Problems (CDPC). He has several publications in criminal law and is also a lawyer in private practice.