The right to legal advice in the investigative stage of criminal proceedings : A comparative study based on Maltese and European legislation and the European court of human rights

Abstract

The right to legal advice at the investigative stage of criminal proceedings has been an element of the law of some states since the Middle Ages. Although, unlike today, interrogation was not a task left to the police, the right to legal advice continued to establish itself under various jurisdictions, and came to be recognised as an important part of the fundamental human rights afforded to every person, as well as one of the most important rights granted to suspects upon arrest. It was codified in various international statutes and treaties too, thus developing in concept to what it is today. The development of the right to legal advice at interrogation in Malta was rather slowpaced. The Maltese legislator only provided for a right to legal advice prior to interrogation decades after the first call for such a right was made. Even after the right to legal advice at the investigative stage was codified, it continued to suffer under Maltese law. The right of having a lawyer at interrogation was only enforced eight years after the initial incorporation of it under Maltese law, and since then, a series of judgments have moved back and forth in deciding the applicability of the right to legal advice under local law. Different Member States apply the right to legal advice in different ways. Some afford it at every stage of proceedings, even pre-trial; some have even afforded it for over 20 years. Other Member States are still ratifying their stand in order to align themselves with the European stipulations for the right to legal advice at interrogation. The European Convention on Human Rights legislates in favour of the abovementioned right, and the European Court of Human Rights has upheld Article 6 in its judgments. When compared with several other jurisdictions, the Maltese Article 355AT has many pitfalls. This thesis seeks to identify the shortcomings of the Maltese law regarding the right to legal advice, and to suggest ways forward that will put it more in line with both the European requirements and the European standards towards which it aspires.