The adequacy of the right to legal advice as put into practice

Abstract

Upon arrest, several rights are afforded to the suspect. This study focuses on one of such rights- the right to legal advice, which right lay dormant on the statute book for 8 years only to be introduced recently by virtue of Legal Notice 35 of 2010. The introduction to this study outlines the aims of this thesis while setting the scene by delving into the notion of arrest and outlining the importance of the right to a lawyer when in police custody. Chapter 1 takes a look at the origins of the right to legal advice so as to understand what warranted its introduction and how it was eventually implemented under Chapter 9 of the Laws of Malta. Chapter 2 is essentially a critical appraisal of the right to legal advice and the inroads that have been made into such right. The focus here is Article 355AT and its counterpart Article 355AU. Chapter 3 takes a glance at case-law emerging from the European Court of Human Rights so as to understand how such Court interprets the fundamental right to a lawyer during pre-trial and the limitations that Contracting States impose on such right. In view of the fact that the right to legal advice is relatively new, Chapter 4 examines the right’s early practice in the police station and also in the courts. Chapter 5 contains the conclusions of this study consisting mainly of a general critique which establishes a failure on behalf of the legislature to strike a balance between the powers of the police and the rights of the suspect. In view of this, the legislator is called upon to amend this inadequate right the suspect is presently provided with.