Strasbourg Jurisprudence, Law Reform and Comparative Law: A Tale of the Right to Custodial Legal Assistance in Five Countries

This article traces the path from the decision of the European Court of Human Rights (ECtHR) in Salduz v Turkey to custodial legal assistance reforms in France, Scotland, Belgium and the Netherlands, and to the recent decision of the Irish Supreme Court in DPP v Gormley . The article attempts to flush out the central role of the ECtHR in effecting national criminal justice reform, while paying attention to considerable variations in national responses. It discusses the thesis that when the ECtHR articulates its rules clearly, as it has arguably done in the Salduz line of cases, it can lead contracting parties to accept its position, even where this might require a significant readjustment of national law and practice. The article also brings into focus the Irish Supreme Court’s strong demonstration of common law comparativism, which influenced the outcome in Gormley at least as significantly as Strasbourg jurisprudence itself. This remarkable cosmopolitan vision is contrasted with the Supreme Court’s simultaneous unawareness of other Salduz -generated reforms in Europe. The article concludes that comparative law should have an important role to play in shaping national responses to Strasbourg jurisprudence and facilitating its acceptance by contracting parties.


INTRODUCTION
In DPP v Gormley and DPP v White, the Irish Supreme Court recognized 'a right to early access to a lawyer after arrest' and a 'right not to be interrogated without having had an opportunity to obtain [legal] advice'. 1 Gormley is the latest link in the chain of radical Strasbourg-inspired reforms of the right to custodial legal assistance in Europe. The seminal unanimous decision of the Grand Chamber of the European Court of Human Rights (ECtHR or 'the Court') in Salduz v Turkey, 2 which was a major influence for Gormley, had already led to, or set in motion at least, reforms of custodial legal assistance in France, Belgium, Scotland and the Netherlands. Like Ireland, these countries had long resisted giving full effect to the right of access to a lawyer in police interrogations. Scotland and Belgium were going so far as denying suspects the right to consult with a lawyer before interrogation, while suspects in France and the Netherlands were entitled to a brief consultation with a lawyer prior to, but not during, questioning. 3 Irish jurisprudence was recognizing access to a lawyer as a constitutional right, 4 but did not 'require that advice from a requested solicitor actually be made available to the relevant suspect prior to questioning' 5 and rejected the possibility of having a lawyer present during questioning. 6 In undertaking a contextual study of reforms of custodial legal assistance in Europe, this article will offer evidence of the central role of the ECtHR in effecting change in national jurisdictions. At the same time, it will highlight considerable variations in national responses to Salduz, and will argue that these illustrate that cosmopolitan influences for reform are mediated by competing judicial and legislative agendas, local resistance and a variety of other political, institutional and economic factors. The article will use these observations as a platform to discuss, and then propose qualifications to, the thesis that when the ECtHR articulates its rules clearly, it can lead contracting parties to accept its position. Reflecting on the Irish Supreme Court's striking demonstration of common law comparativism in Gormley, the article will also offer some thoughts on the role that comparative law should play in shaping national responses to Strasbourg jurisprudence.

STRASBOURG JURISPRUDENCE AND NATIONAL REFORMS OF THE RIGHT TO CUSTODIAL LEGAL ASSISTANCE
To explore Strasbourg's role in reforms of the right of access to a lawyer in Europe, I will provide a sketch of the state of custodial legal assistance before and after entitled to prior legal advice in cases of interrogation, in relation to White's appeal the Court held that there is no such entitlement in cases of forensic testing. Though the case of White merits attention, it is the case of Gormley that is of particular comparative interest for the analysis of similar jurisprudence and ensuing legal reforms in the other European legal systems discussed in this article. Salduz in the five European countries that will be compared in this article. It will first be necessary to offer a brief account of Salduz and its progeny, and a more detailed analysis of the most recent demonstration of their effect, namely the Irish Supreme Court's decision in Gormley. A. Salduz and its Progeny Salduz represents a major re-evaluation of the ECtHR's position on the importance of 'the investigation stage for the preparation of the criminal proceedings'. 7 The suspect in Salduz was a minor of 17-years-of-age who had been interrogated at an antiterrorism branch of the Turkish police in the absence of a lawyer, making several admissions about his involvement in the suspected offences. The case was first examined by a Chamber of the ECtHR, which found no violation of the right to fair trial, mainly on the basis that the applicant had had legal representation during the trial and appeal proceedings, his statement was not the sole basis for conviction and he had had the opportunity of challenging the prosecution's allegations. The fairness of the trial had, therefore, not been prejudiced by the lack of custodial legal assistance. 8 This finding was in line with the pre-Salduz approach of assessing fairness with regard to the entirety of the proceedings. 9 The Grand Chamber's decision in Salduz departed from this approach altogether, holding that Article 6(1) of the European Convention on Human Rights 10 (ECHR or 'the Convention') requires that 'as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police' 11 and that '[t]he rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.' 12 The Court rejected the argument that the assistance provided subsequently by a lawyer or the adversarial nature of the ensuing proceedings could cure the defects occurring during police custody. 13 The ECtHR provided quick confirmation of this new approach in a series of Chamber judgments. In Panovits v Cyprus, 14 it reiterated that 'Article 6 requires that the accused be given the benefit of the assistance of a lawyer already at the initial stages of police interrogation', 15 and then considerably extended the scope of the application of the right to legal assistance in Dayanan v Turkey, which mandated that a suspect should be assisted by a lawyer 'as soon as he or she is taken into custody . . . and not only while being questioned', and that he should be able to 'obtain the whole range of services specifically associated with legal assistance'. 16  of access to a lawyer was seen as extending beyond the right to legal advice, to include a wider notion of legal assistance that applies during the entire interrogation phase and not simply prior to, or during, the questioning of the suspect. 17 The Court likewise found a breach of the right to fair trial in Pishchalnikov v Russia, where the suspect had been questioned in the absence of a lawyer in the first two days of interrogation, though he had specifically asked to be assisted by a lawyer. 18 The Court held that the authorities should have offered the suspect the opportunity to retain a counsel even if the one originally requested by him was unavailable. 19 The Court concluded that the lack of legal assistance had irretrievably affected the right to a fair trial, 20 and that an accused 'who had expressed his desire to participate in investigative steps only through counsel, should not be subject to further interrogation by the authorities until counsel has been made available to him'. 21 Finally, in Brusco v France, the ECtHR removed any doubts about the lawyer's presence at questioning, by holding that the defendant has the right to be assisted by a lawyer from the beginning of his detention as well as during questioning. 22 The Salduz line of jurisprudence continues to evolve at a very fast pace 23 and to exert considerable influence in European countries. Gormley is the last of radical developments in this area. After presenting the case, I will demonstrate that it reflects a trend of breathing new life into the right to custodial legal assistance in those European jurisdictions that had long failed to recognize a role for lawyers at the police station.

B. Salduz Strikes Again: DPP v Gormley
The appellant in Gormley had requested a solicitor shortly after being arrested and being notified of his rights, and had provided the police with the names of two solicitors. The gardaí (officers of the Irish national police) made efforts to locate either one of the two solicitors. One of them contacted the Garda station less than an hour later, to confirm he would soon arrive at the station. But the gardaí did not wait for the solicitor and started the interview immediately after he made contact with them. 24 It is in the course of this interview that the suspect made a number of 17 For a discussion of the distinction between the right to legal advice and the right to legal assistance, see inculpatory admissions which were deemed admissible in trial. The Supreme Court was thereupon faced with the question whether commencement of the questioning should be postponed to enable the solicitor to attend at the Garda station or whether simply contacting the solicitor vindicates the suspect's right to legal assistance. Until Gormley was decided, the right of access to legal assistance was being narrowly interpreted as a right to reasonable access only 25 and was therefore of 'limited practical effect'. 26 The gardaí's 'bona fide attempts to comply with [the suspect's] request [for legal assistance]' seemed to satisfy this requirement, unless it could be demonstrated that the gardaí had made a conscious and deliberate attempt to deprive the suspect of the services of his solicitor. 27 But the Irish Supreme Court said in Gormley that the Constitution's mandate that a person should not be tried save 'in due course of law' 28 encompassed 'the right not to be interrogated without having had an opportunity to obtain such advice'. 29 This specifically derived from the right against self-incrimination 30 and was 'an important constitutional entitlement of high legal value'. 31 Gormley now provides 'an entitlement not to be interrogated after a request for a lawyer has been made and before that lawyer has become available to tender the requested advice'. 32 The Court emphasized that, '[a]t a minimum', the right of access to a lawyer while in custody 'would be significantly diluted if questioning could continue prior to the arrival of the relevant lawyer'. 33 The Court also recognized that 'there are many issues of detail which surround the precise extent of such a right' 34 and that the right is 'potentially subject to exceptions', 35 but it then went on to explain that these would be 'extreme exceptions where the lawyer just does not arrive within any reasonable timeframe', 36 and added that this would be 'a matter to be debated if and when a case with those facts actually comes before the Court'. 37 4 p.m. The appellant's interview started at 3.10 p.m. The solicitor arrived at the station at 4.48 p.m.: Gormley, supra n 1 at paras 3. Salduz played a key role in the Irish Supreme Court's transition from the 'reasonable access' test to mandating that questioning could not commence or continue before the arrival of a lawyer. The Court took as its point of departure the 'general principles' established in Salduz, citing extensively from the decision of the Grand Chamber, 38 the ECtHR's decisions which later reiterated and further developed these principles, 39 as well as Cadder v HM Advocate, in which the UK Supreme Court substituted the Salduz line of jurisprudence for the pre-existing regime of police interrogation in Scotland. 40 The first question that the Irish Supreme Court asked in Gormley was whether the entitlement to a trial in due course of law also encompassed an entitlement to access legal advice before interrogation. Establishing that this was the position taken by ECtHR jurisprudence, the Court responded in the affirmative. 41 This opened the way to examine the question central to Gormley of whether this entitlement also carried with it 'an entitlement not to be interrogated after such access is requested and before access to such a lawyer is obtained '. 42 Noting that this was indeed the 'consistent international position', 43 which the ECtHR had also adopted, the Court took the radical step of prohibiting the continuation of questioning before legal advice being obtained. 44 This was required, the Court concluded, to compensate for the particular vulnerability of the suspect after arrest, which was the core reasoning behind Salduz. 45 Strasbourg's key influence in Gormley also becomes evident when contrasted with the conclusion in the linked appeal of DPP v White. The Court explained there that, according to ECtHR case law, the taking of forensic samples without the benefit of legal advice did not amount to a breach of the right to a fair trial. 46 This meant that a distinction could be drawn between recognizing the right to prior legal advice in cases of police interrogation-which derived directly from Strasbourg jurisprudence-and rejecting the right in cases of forensic testing, in view of the fact that such an extended application of the right to legal assistance could not be supported by the ECHR. 47 C. Before Salduz in France, Scotland, Belgium, the Netherlands and Ireland Resistance to recognition of the right to custodial legal assistance in France is a welldocumented fact. 48  Lord Rodger's historic analysis in Cadder brings to the fore the main reasons underpinning this quite idiosyncratic position, 57 which was 'intended to give the policeand therefore the prosecution-an enhanced possibility of obtaining incriminating admissions from the suspect which [could] then be deployed in evidence at his trial'. 58 In Belgium, prior to Salduz, legislation provided for legal assistance only after interrogation by the investigating judge. 59 This meant that suspects were deprived of any access to a lawyer for the whole 24-hour period of interrogation by the police or even on the most solemn occasion of examination by the investigating judge preceding the issuance of an arrest warrant. 60 This practice of entirely isolating the suspect when at the police station appears to have been so embedded in the Belgian legal culture that even the Cour de cassation, the highest court in the land, originally went so far as to consider that it was compatible with the Salduz jurisprudence, by adopting the 'overall fairness of the proceedings' argumentation that had been explicitly rejected by Salduz itself. 61 In choosing an arguably more resourceful defence of the national legal practice, the Cour d'assises (mixed criminal tribunal) in Liège reached the same conclusion, by pointing out that Belgian law provided the suspect with alternative procedural guarantees that compensated for the absence of a lawyer during custodial interrogation. 62 The decision mirrors the opinion of the Scottish High Court of Justiciary in HM Advocate v McLean, where the practice of providing the suspect with no access to a lawyer for a period of up to six hours was strongly defended by the highest jurisdiction in Scotland on the premise of guarantees otherwise available to secure a fair trial. 63 This defence of the status quo was eventually seen as flawed in both jurisdictions, 64 yet still clearly demonstrates how, until Salduz, no one seemed to think that questioning the suspect without access to legal assistance could actually be in breach of the right to fair trial. From this viewpoint, Lord Hope's observation in Cadder that it was 'remarkable that, until quite recently, nobody [in Scotland had] thought that there [had been] anything wrong with this procedure' 65 applies a fortiori to Belgium, which prior to Salduz endorsed possibly the most restrictive interpretation of the right to legal assistance in Europe.

'
The man who appears before the investigating judge is alone, he does not have the right to a lawyer', noted Cécile Thibaut in an amendment to the Bill reforming custodial legal assistance: see Document législatif n 4-1079/2, Proposition de loi modifiant l'article 1 er de la loi du 20 juillet 1990 relative à la détention préventive, afin de conférer de nouveaux droits, au moment de l'arrestation, à la personne privée de liberté. By contrast, the Dutch Code of Criminal Procedure provided for assistance by a lawyer of the suspect's choice 66 and entitled the suspect to be assisted by a lawyer when questioned by the investigating judge. 67 But Dutch jurisprudence had generally interpreted these provisions to mean no right to legal assistance prior to, or during, police interrogation. 68 Police interrogation was also preceded by a 'temporary arrest' phase, lasting a maximum of six hours, during which the Code of Criminal Procedure provided for no intervention of a lawyer. 69 In an analysis of the response of the Netherlands to Salduz, Brants exposed Dutch hostility towards legal assistance as firmly rooted in the inquisitorial understanding of the suspect as 'primarily a source of information' and the prosecution service as the institution 'in charge of the police' that 'can be trusted to also take the suspect's pretrial interests into account'. 70 If the 'inquisitorial resistance' explanation is right (and similar experiences in France and Belgium offer comparative support to such a finding), 71 then it must also provide a significant explanation for the Netherlands' historic neglect of the need for greater protections for the suspect in this field. Brants provides an account of resistance and complacency in the face of miscarriages of justice, while underlining the dearth of criticism from indigenous academic and professional sources. 72 Despite all this, at the time of Salduz, the Netherlands was, perhaps surprisingly, taking its first steps towards greater recognition of suspects' rights at the police station, notably by putting in place a trial project whereby, exceptionally, suspects could be assisted by a lawyer in interrogations for unlawful killings. 73 The pre-Gormley limitations of the Irish position on 'reasonable access' to a lawyer have already been sketched above. Here it can be added that a 'reasonableness' standard also applied to the duration or number of consultations permitted, once a solicitor's presence at the police station has been secured, exacerbating the uncertainty surrounding the exercise of the right to legal assistance in practice. The analysis of Justice Hardiman in the separate concurring judgment in Gormley brings to the surface similar concerns, such as in relation to the overwhelming conditions of police custody that undermine the suspect's resolution to see a solicitor or the proliferation of non-specialist solicitors giving advice on complex areas of criminal law. 75 All this must also be seen against the backdrop of the statutory power to draw adverse inferences from 'silence' in custodial interrogations in Ireland, which further highlights the flaws inherent in the pre-Gormley position there. 76 More importantly, like all of the countries mentioned above, Ireland had long deprived suspects of the right to have a lawyer present during questioning. 77 Gormley deferred judgment on this matter, but opened the way for the reform of this crucial aspect of custodial legal assistance.
D. After Salduz Salduz caused legal earthquakes in all of the countries examined above, even if some were less powerful than others. The Scottish government was the first to react. Following the Supreme Court's strict application of Salduz in Cadder, it rushed legislation through the Scottish Parliament that recognized suspects' right to have a private consultation with a solicitor before any questioning begins and at any other time during such questioning, but did not specifically prescribe a right to have a lawyer present when questioned by the police. 78 The police may afford the suspect access to a lawyer during interrogation, but there is nothing in the relevant Act that prescribes a duty to do so. 79 The legislation was enacted in October 2010, 80 leading to considerable criticism and debate coming especially from Scottish scholarly circles, protesting an inappropriate interference by the Supreme Court with unique domestic elements of the Scottish criminal justice system and pinpointing the collateral risk of a diminution of other rights of the suspect. 81 Since then, the Scottish government has appointed Lord Carloway to undertake a review of key elements of criminal law and practice, 82 and has introduced a Bill into the Scottish Parliament that takes forward and develops Lord Carloway's recommendations. 83 The Bill provides for a 'right to have a solicitor present while being interviewed'. 84 France followed suit only a few months later, with the Law of 14 April 2011, which, for the first time, afforded suspects the right to be assisted by a lawyer when questioned by the police. 85 Passing this legislation was the final act of a long reform process that the government had initiated much earlier-half-heartedly, it must be said-and that only found momentum as a result of French courts' enthusiastic reception of Salduz and the cases that followed it. In fact, the French government had originally settled for solutions that were going much less far than those embraced by Strasbourg, 86 and it is fair to argue that it was only under the burden of pivotal decisions applying Salduz-first by the Conseil constitutionnel (Constitutional Council), 87 then the Cour de cassation (the French 'supreme court') 88 -that the government was forced to change direction. 89 The Belgian Law of 13 August 2011 90 mirrors the legislation enacted in France, providing the suspect with the right to consult confidentially with a lawyer from the beginning of the interrogation and before the first questioning by the police 91 as well as the right to be assisted by a lawyer during questioning. 92 Salduz 'served as the detonator' for this radical development, observed the Collège des procureurs généraux (the body that represents prosecuting officials in Belgium). 93 The Collège sought to fill in the gap in the existing legislation by issuing provisional guidance that was going some way towards providing the suspect with the right to legal assistance. 94 The Association des juges d'instruction (association of investigating judges) and the Conseil d'État (Council of State) likewise put pressure on the government to rectify the situation, though they adopted narrow interpretations of Salduz and the solutions deriving therefrom. 95 The effect of Salduz was more immediately reflected in some lower courts' responses, as they refused to base convictions on confessions obtained in the absence of a lawyer from custodial interrogation 96 (and this despite the fact that the Cour de cassation had found Belgian legislation allowing this to be compatible with Article 6 of the ECHR), 97 as well as in the initiatives undertaken by Bar Associations across the country to provide legal assistance wherever local judicial authorities so permitted. 98 In this climate, legislative reform was inevitable, and though the government had originally attempted to avoid giving full effect to the Salduz jurisprudence (first by proposing that legal assistance should only be provided after eight hours of interrogation had elapsed, 99 then by insisting that, in a first phase of the reform, there should be no right to the presence of a lawyer during questioning), 100 in the end it 'conceded' both rights. The fact that the legislation of August 2011 has come to be widely known as 'loi Salduz' ('Salduz legislation') 101 speaks for itself about the influence of the ECtHR in effecting a 'fundamental' and 'revolutionary' criminal justice reform in Belgium, to borrow the words of the Minister of Justice who introduced the relevant Bill in the Belgian Parliament. 102 The Netherlands offers an illustration of a more moderate, though still not finalized, response to Salduz. In contrast to Scotland, France and Belgium, the Dutch government has still today-nearly seven years after Salduz-not enacted legislation giving effect to the latter. A new Bill, drafted following publication of the European Union (EU) Directive on the right of access to a lawyer, 103  before the Lower House (House of Representatives) for approval, but there is still a lot of uncertainty as to when the parliamentary process will be concluded. 104 The Dutch Supreme Court's approval of the pre-Salduz status quo provides an explanation for the Netherlands' continued reluctance to give effect to the right to legal assistance. In a much-awaited decision handed down in June 2009, the Court recognized that Salduz implied a right to prior consultation, to be informed of that right and 'to be able within reasonable limits to exercise it', but not a right to be assisted by a lawyer during interrogation, save for the interrogation of juveniles. 105 The Supreme Court explained that it had to defer to the government the design of specific rules on legal assistance, and that, 'in expectation of new legislation, it could [only] rule on the minimum standard apparently required'. 106 The legal vacuum left by the government's reluctance to legislate and the Supreme Court's adoption of a restrictive interpretation of the Salduz jurisprudence (to the extent that this had evolved by 2009) was filled, to some degree, by binding instructions issued by the prosecution service. 107 However, these not only did not provide for the presence of a lawyer during interrogation, but also qualified consultation rights according to the seriousness of the offence in question and the age of the suspect. Similar qualifications were made to receiving legal aid, being notified of the right to legal assistance and having the ability to waive the right. 108 A Bill introduced in the Dutch Parliament in April 2011 was going further than that, providing inter alia for the presence of a lawyer during interrogation regarding offences punishable by a maximum of no less than six years imprisonment, but the Bill was abandoned. 109 In recent, more dramatic developments, first the Attorney-General gave legal advice to the Supreme Court approving the presence of the lawyer during questioning, then the Supreme Court opined that the right to legal assistance must be regulated by law and that, if no legislation is forthcoming, it might have to rule differently in future cases, giving recognition to the right. 110 The EU Directive seems to have finally brought the Netherlands closer to extending the scope of the right to legal assistance to questioning, and, more importantly for present purposes, the right for their lawyer to be present and participate effectively when they are questioned by the police. The Directive goes as far as give suspects the right for their lawyer to attend particular investigative or evidence-gathering acts such as identity parades, confrontations and reconstructions of the scenes of the crime. to include the presence of the lawyer during questioning, though it must be stressed that the Bill that will give it effect comes with many strings attached, subjecting the exercise of the right to various exceptions. 111 Finally, in Ireland, as already discussed, Salduz and other international jurisprudence eventually drove the Supreme Court to strike the vague 'reasonable access' test into oblivion and prohibit any questioning prior to the arrival of the lawyer. Even more dramatic was the shift to allowing suspects to have a lawyer present during questioning. Since the issue had not arisen on the facts of Gormley, the Supreme Court refrained from deciding it, intimating, however, that the solicitor's presence was integral to the right to legal assistance. 112 Then, only two months after Gormley, the Director of Public Prosecutions issued a directive to the Garda Sioch ana-and the Department of Justice informed the Law Society accordingly-to the effect that if suspects ask for the assistance of a lawyer during questioning the gardaí should accede to their request. The most significant change of Irish criminal procedure in the past 30 years had Salduz and ECtHR jurisprudence written all over it. 113

VARIATIONS IN NATIONAL RESPONSES
These modern transformations of custodial legal assistance in Europe provide ample demonstration of the ECtHR's drastic influence on national legal systems, 114 and confirm academic analyses of Strasbourg's power to effect reform in areas where the balance of local powers-political, professional or institutional-may have long deprived the national legal system of the capacity to venture forward in imaginative, bold ways. 115  influence, come out of a protracted period of isolationism in the field of suspects' rights to introduce-or, at least, take important steps towards-reform long seen as providing no fit with the national legal culture. This is a good point of departure when assessing the ECtHR's role in the construction of a new landscape of procedural rights in Europe. But important variations in the national responses can also be located, and these lend themselves to a deeper analysis of the diverse ways in which the Convention's influence may manifest itself in different European countries. A first point worthy of consideration relates to the urgency with which the five legal systems discussed above have responded to Salduz. Scotland, France and Belgium have all shown reasonably quick reflexes to the ECtHR's jurisprudence, introducing legislation with a difference of only a few months between them. An immediate legislative response was seen in all of them as the direct and inevitable outcome of the Court's jurisprudence. The Scottish government resorted to 'emergency' legislation, 116 despite the profound impact that this was likely to have on thousands of cases that were ongoing, awaiting trial or held in the system pending the hearing of an appeal. 117 The Belgian Minister of Justice spoke with similar urgency and conviction in the Belgian Parliament, accepting that 'the Salduz jurisprudence [was] a given and imposed on [Belgium]'. 118 Salduz was perceived in exactly the same way in parliamentary discussions in France, all the more so after the ECtHR found a breach of Article 6 of the ECHR in Brusco v France. 119 The impact of the reform in both Belgium and France was anticipated with the same level of concern that existed in Scotland, particularly due to the number of cases that would be put in peril and the complications arising from having to set up an effective system of legal assistance within very strict deadlines. 120 The Netherlands, on the other hand, has still not legislated the right to have a lawyer present during custodial interrogation, though, paradoxically, it was the only one of the above legal systems which had experimented with application of this right prior to Salduz. The fact that a Bill is only now being examined in the Dutch House of Representatives means that the country's delayed response to Salduz was second only to that of Ireland. Before Gormley, the effect of Salduz had been virtually invisible there, while the government has still today not introduced a Bill dealing with these matters. These temporal variations may, of course, be due to coincidence-for example, an appropriate case reaching the national 'supreme court'-but they may also reveal the different understandings that may exist in different legal systems as to giving the Convention immediate effect in practice.
Asking 'to what extent'-and not just 'when'-the national legal system gives effect to Convention jurisprudence can offer a far more revealing illustration of the diverse ways in which the latter exercises its influence in national legal systems. The preceding analyses on the right to have a lawyer present during questioning provide evidence of such divergence. Even where suspects are given access to a lawyer during questioning, important variations exist as to the lawyers' role there. Thus, while French and Belgian legislation, and now the Bill pending before the Dutch House of Representatives, rigorously restrict lawyers to a passive, non-adversarial role during questioning (specifically enumerating actions that can be undertaken by them while prohibiting others), 121 in Scotland it was felt that the role of the lawyer in providing advice did not need to be set in legislation. 122 In theory, this allows for the adoption of a more adversarial attitude during interrogation, but, possibly, also gives the police carte blanche to restrict the lawyers' ability to actively represent their clients in interview. Scotland also differs from France, Belgium and the Netherlands in that it does not regulate the duration and frequency of private consultations with a lawyer (consultation lasts a maximum of 30 minutes in the three Continental systems). 123 On the other hand, consultations in Scotland seem to invariably take place via tele- Moreover, in France, Belgium and the Netherlands, the police are obliged to delay the questioning of the suspect only for a period of two hours from the moment contact has been made with the lawyer. 125 The Bill currently examined by the Dutch House of Representatives goes as far as to give the police the power to question the suspect immediately after arrest in the absence of counsel or to decide not to admit the lawyer into the interrogation room in exigent circumstances. 126 In Scotland, there is no fixed rule on how long the police must wait before they can question the suspect, but the Carloway Review considered that 'one hour' in urban areas and 'two hours' in rural areas would be acceptable. 127 In Ireland, on the other hand, Gormley's effect is that there can be no questioning until the solicitor arrives at the police station. No time limit applies there. 128 To take another example of variations in national responses, in France, despite the significant advances achieved with the April 2011 legislation, the lawyer can still be excluded from interrogation for 48 hours in relation to organized crime offences, and a whole 72 hours in investigations relating to terrorism and drug trafficking. 129 Similar exceptions are not encountered in the other countries examined in this article. Of even more concern is the fast-growing practice of affording no legal assistance to suspects voluntarily attending the police station. This is now the position in France in relation to both voluntary attenders and persons who are not yet suspected of the commission of an offence, and this with the blessing of the Conseil constitutionnel. 130 In Belgium, depriving suspects not detained by the police of legal assistanceor of mere consultation rights, in less serious offences 131 -was seen as a compromise needed for the right to legal assistance to be indeed recognized in cases where the suspect is detained by the police. Allegedly this was needed to avoid organizational and budgetary complications that would otherwise arise. 132 Even more curious is the fact that, in the Netherlands, voluntary attenders are actually presumed to have consulted a lawyer before attending the police station and are therefore afforded no further right to consultation. 133 Scotland, on the other hand, provides voluntary attenders with the same right to have access to a solicitor as those who are detained at the police station. 134 Such divergence cannot be taken lightly, as possible police over-reliance on 'voluntary attendance' could undermine the effect of Salduz rights reserved for later stages of the process. 135 It must be noted here that, though Salduz itself may have not directly addressed the issue of voluntary attenders' right to legal assistance, post-Salduz jurisprudence has accepted that the right may be activated even before arrest or the first interrogation, even outside the police station, 136 and even where the police may have examined the suspect as a witness. 137 The rule devised by Strasbourg may not be as clear in relation to consultation rights or the right to have a lawyer present during interrogation (a proper case has not reached the Court yet), still one might have reasonably expected to find fewer variations here; the Court takes as its main premise that a person interrogated at the investigation stage finds himself in a vulnerable position, and that, in most cases, only the assistance of a lawyer can properly compensate for it. 138 This is all the more so where the person concerned is questioned at the police station, and there is much to say about 'voluntarily' attending the police station and having the 'freedom' to leave, in the context of such questioning. 139 The above shows that despite the unquestionable influence of the Salduz stream of cases on national jurisdictions, Salduz rights have been given effect to different degrees there. For the most part, this reflects national resistance to fully adopting these rights, and this despite Strasbourg pronouncing itself with sufficient clarity in this area. This becomes even more obvious when one looks at post-Salduz organization of legal assistance in practice, such as in relation to the provision-and remuneration levels-of legal aid, the efficient functioning of duty lawyer schemes, the operation of police station training schemes for lawyers and police officers alike or the physical organization of police consultations in a manner that would guarantee their confidentiality. 140 These variations make Salduz an interesting case study of the acceptance of Strasbourg jurisprudence in national jurisdictions.

SALDUZ AS A PARADIGM OF ACCEPTANCE OF STRASBOURG JURISPRUDENCE IN CONTRACTING PARTIES?
In a recent Criminal Law Review article, Jackson and Summers used Salduz as a paradigm drawing support for the thesis that 'when the ECtHR articulates clear rules and a coherent rationale for its approach, it can win acceptance for its position even when this may have far-reaching consequences for national law'. 141 The article contrasted Strasbourg's success in gaining acceptance for its position on custodial legal assistance in the United Kingdom and Switzerland (the two comparative points of reference in the article)-as a direct result of Salduz setting clear rules and having a coherent rationale-with Strasbourg's failure to advance its thesis on confrontation (in the same legal systems), precisely because the relevant jurisprudence lacked a coherent rationale and was not providing national courts with clear rules. 142 Though not applicable to confrontation evidence, the analysis in the preceding sections offers a useful opportunity to scrutinize the Salduz part of Jackson's and Summers' argument. At an empirical level, developments in the five systems examined here conform with Jackson's and Summers' observations about the effect of Salduz. In these European systems, Strasbourg has in principle gained acceptance for its position on custodial legal assistance. There is also evidence that where this was not immediately so, it was specifically grey areas of Salduz that may have fuelled resistance or given rise to a more reluctant approach. 143 But here it is as well to draw attention to the variations in the national responses sketched above. These considerably influence the application of Salduz rights in practice, to a degree that variations cannot be dismissed as routine or insignificant. Seen from this angle, the argument that clarity gains acceptability may need to be qualified. Variations in national responses signify effective implementation of Salduz rights in practice: see Blackstock et al., supra n 68 at 435-9, 448-50 and 454-6. Beys and Smeets report that in some police stations in Belgium consultations are taking place behind a glass partition, that police officers can visually observe the interactions between suspects and lawyers and that many lawyers refuse to participate in legal aid schemes due to serious complications with remuneration: see Beys and Smeets, supra n 120 at 108 and 117. Similar problems have been encountered in France: see Seelow, 'Rien n'est prêt pour la "nouvelle" garde à vue', lawyer' (Salduz, supra n 2 at paras 54-55) gave rise to contrasting interpretations as to its precise effect: a 'minimalist' interpretation, according to which access to a lawyer did not go any further than a right to consultation prior to questioning, and a 'maximalist' interpretation, which also encompassed the physical presence of the lawyer during questioning. The controversy at the national level was resolved when the ECtHR specified in Brusco v France (supra n 22) that the suspect has the right to be assisted by a lawyer during questioning, which provides a good illustration variable degrees of acceptance. Despite its clear rationale, Salduz was not adopted with the same urgency or enthusiasm across different European countries, and there remain important differences as to the extent to which the right to have a lawyer present during questioning in particular has been written into national legislation. Divergent attitudes also come to the fore when one distinguishes between the responses of national courts and those ultimately provided by national legislation. As previously discussed, the Belgian Cour de cassation originally considered that national legislation, which was not even recognizing a right to consultation, was In other words, irrespective of its alleged clear rules and rationale, Salduz failed, on these occasions, to gain judicial acceptance in the way eventually achieved through legislation or subsequent judicial extrapolations on the matter. The variable adoption of Salduz in these European countries does not necessarily agree with the observation that clear rules and a coherent rationale will gain ECtHR jurisprudence acceptance in contracting parties. The above observations take nothing away from the specific comparative analysis undertaken by Jackson and Summers, which has shown important commonalities in the responses of the UK and Switzerland to ECtHR jurisprudence in conforming to Salduz and resisting Strasbourg's rulings on confrontation. But they do highlight the need, and opportunity, to situate such analysis in a wider context of the diverse factors that determine national responses to Strasbourg jurisprudence. Jackson and Summers allude to this need by noting how the desire to defend legal tradition has been the main source of resistance to Strasbourg's approach on confrontation. 149 The argument that when Strasbourg articulates clear rules and a coherent rationale for its approach, it can enhance adherence to Convention jurisprudence, is surely convincing. For one thing, it appeals to intuition, for another, it finds support in much of the comparative analysis undertaken here. But, by the same token, it is difficult to see how such a Court-centred explanation of acceptance of ECtHR jurisprudence could possibly stand alone, in isolation from contracting party-centred explanations of acceptance of (or resistance to) such jurisprudence. By Court-centred explanations I mean those that may offer an account of acceptance mainly by 144 Supra n 60. 145 Supra n 108. 146 The Conseil constitutionnel did not immediately repeal the custodial interrogation provisions it found unconstitutional, giving the Parliament an 11-month deadline to remedy the situation: see supra n 87 at para 30. 147 HM Advocate v McLean, supra n 55. 148 JM v Member in Charge of Coolock Garda Station, supra n 6 at para 27. The High Court considered Salduz and Panovits, but failed to examine Brusco. 149 Jackson and Summers, supra n 141 at 115. reference to the actions of the Court, such as in its bringing precision and coherence to its jurisprudence or in its pursuing a more active dialogue with national supreme courts and national judges. Contracting party-centred explanations may focus, on the other hand, on indigenous forces shaping national responses to the Court's jurisprudence. These contracting party-centred explanations may, for instance, locate acceptance primarily in the national jurisdiction's cosmopolitan attitudes or, conversely, link resistance with the perceived need to defend the national legal tradition against external influences. 150 They may reveal a pragmatic approach to the relationship with Strasbourg 151 or bring to the surface simple logistical considerations relating to the ability of the contracting party to accommodate the European jurisprudence in practice. 152 Seen from this angle, Jackson's and Summers' analysis can help the Court be more vigilant in elaborating precise rules and a coherent rationale for its approach-and perhaps even incorporating a reflection on the type of practical measures needed to ensure their effective implementation in practice-precisely when it hands down innovative judgments on controversial areas of criminal justice, where a common European position may have not yet fully crystallized and where national resistance may thus be likely to slow down, if not seriously obstruct, acceptance of the Court's positions. 153 Of course, while such an approach will be welcome lawyer present during questioning. A ECtHR in potential 'competition' with the Court of Justice of the EU might be influenced by relevant directives to become much more prescriptive when handing down judgments in this area in the future in order to reduce the variability of national interpretations and increase the level of adherence to its jurisprudence. Jackson's and Summers' inquiries as to how the Court can gain acceptance for its positions become even more timely when examined against the backdrop of these developments.
At this point, we can broaden the angle of vision even further, beyond the EU Directive, to also give consideration to the relationship between ECtHR jurisprudence and comparative law. We need to go back to Gormley for that purpose.

COMMON LAW COMPARATIVISM AND STRASBOURG
JURISPRUDENCE Even more noteworthy than the wide reading of the right to legal assistance in Gormley is the Supreme Court's strong demonstration of legal cosmopolitanism in this case. In considering the proper approach to the Irish Constitution, the Court reviewed not just the case law of the ECtHR, but 'also the constitutional jurisprudence of the superior courts of other jurisdictions which have a similar constitutional regime to [Ireland]', 159 more specifically that of the 'supreme courts' of the United States, Canada, Australia and New Zealand. This makes Gormley an exceptional case study of the effect of common law comparativism on the constitutional interpretation of the right to legal assistance, and offers a demonstration of the usefulness of this comparative methodological tool in getting legal experts 'to grips with the dynamic, multi-level, cosmopolitan legal environments which constitute today's reality'. 160 In Gormley, the Irish Supreme Court first established the ECHR baseline requirements for the respect of the right to legal assistance, notably access to a lawyer before and during questioning. 161 But to determine the more specific issues raised by Gormley's appeal-in particular whether, granted the right to early access to a lawyer, the police also had to postpone questioning to enable the lawyer to arrive at the police station-the Court extended its analysis beyond a simple examination of relevant Strasbourg jurisprudence. Particular attention was thus paid to the US Supreme Court's historic decision in Miranda v Arizona, which held, among other things, that 'the interrogation must cease immediately if it has already commenced and can not [sic] resume until the suspect has had an opportunity to consult with a lawyer'. 162 Emphasis was also placed on the Canadian Supreme Court's decision in R v Sinclair, which read into the constitutional right to retain and instruct counsel without delay 163 'a duty on the police to hold off questioning until the detainee has had a reasonable opportunity to consult counsel', 164 as well as on the existence in New Zealand of a similar 'duty to refrain from taking any positive or deliberate step to elicit evidence from the detainee until he or she has had a reasonable opportunity to consult with counsel'. 165 Note was also taken of a similar practice in Australia despite noting slight variations between different states and even though in theory there is no right to have a lawyer attend at a police station there. 166 A 'clear international view' was then derived from this jurisprudence, and this was 'consistent with the jurisprudence of the ECtHR'. 167 It was precisely on this combined view emerging from Strasbourg and comparative common law that the Irish Supreme Court based its conclusion that the defendant in this case did not have a trial in due course of law by reason of the fact that a material element of the evidence on foot of which he was convicted was evidence obtained during questioning which occurred after he had requested legal advice and before that legal advice had been obtained. 168 Such cosmopolitan legal thinking provides a fine illustration of the potential for imaginative legal interpretation inherent in the symbiosis of Strasbourg jurisprudence with that of superior courts in other jurisdictions, in Europe and beyond.
Equally remarkable is the fact that the Supreme Court's cosmopolitan logic in interpreting the Constitution in Gormley went hand in hand with a powerful rhetoric for the adoption of a proactive internationalist approach to legal reform. The issue in question was 'not one which could reasonably be said to have taken the authorities by surprise', 169 noted Justice Clarke, delivering the opinion of the Court. 'The likelihood that the State would be required' to legislate the right to legal assistance could 'hardly come as a surprise', he repeated; 170 reform had 'been on the agenda for a sufficient period of time', 171 stemming from national constitutional jurisprudence, 172 'the well established jurisprudence of the ECtHR' 173 as well as 'the jurisprudence of courts, whose judgments on like issues the Irish courts frequently regard as persuasive, for quite some time'. 174 With specific regard to Salduz, Justice Clarke noted that the decision had been 'delivered in 2009 [sic] and the possibility that such a view might be taken . . . must have been clear for some time before that'. 175 He concluded from all this that if reform had not happened yet, it was the State which should accept responsibility. One could hardly imagine a more urgent call to the Irish government to now introduce legislation conforming with Gormley. One could, more generally, hardly imagine a more dynamic approach to interpreting national constitutions in accordance with international law, or a stronger commitment to the comparative method. Gormley also sheds light on Jackson's and Summers' thesis on the acceptance of ECtHR jurisprudence in contracting parties. Perhaps where Strasbourg judgments lack the clear rules and coherent rationale that Jackson and Summers aspire to, comparative law could afford contracting parties an effective methodological tool to tackle areas of complexity. This would not benefit contracting parties only, but also the Court itself, as the dialogue between them would be enriched, and potentially facilitated, by reflection on examples from foreign legal cultures.
For all its exceptional attention to foreign and international law, Gormley is, however, unduly restricted in the comparative law angle that it adopts. There is no doubting the logic of the Supreme Court in looking into the practice of constitutional courts with roots in the same legal culture as it, but it still is surprising that the various Salduz-inspired European reforms discussed in this article were completely under its radar. In reality, what this means is that while attempting to interpret Salduz and its progeny, the Irish Supreme Court has been oblivious to, or perhaps unwilling to take into consideration, recent or even simultaneous European attempts to apply the same jurisprudence. The same could be said with reference to the EU Directive on the right of access to a lawyer, which the Court has also neglected (or wilfully ignored). One could argue here that it might be unreasonable to expect the Supreme Court of Ireland to be aware of legal reform in, for instance, Belgium or the Netherlands, and that the force of the linguistic and cultural (civil law) barriers to common law understandings of constitutional interpretation should not be underestimated, 176 but this de facto agnosticism argument surely diminishes in force when viewed against the backdrop of European Union developments in which Ireland actively participates. Ironically enough, it was the Irish Presidency of the Council of the EU that secured agreement with the European Parliament on the Directive. 177 These observations are a useful reminder of the complex ways in which legal cosmopolitanism manifests itself in the emerging global landscape. The Irish Supreme Court took into account the pronouncements of Australian courts, where there is not even a right to legal assistance at the police station, but showed no awareness of the extensive reform of custodial legal assistance currently under way in the common law system of Scotland, the much-discussed-including in English academic scholarship-recent reforms in the continental system of France or a bold Directive aiming to strengthen defence rights across the EU. Even in the event that this was only due to coincidence, and even if Gormley generally showcases a remarkably internationalist approach to legal interpretation that is in line with observations about 'the growing importance of comparative legal method in an era of cosmopolitan legality', 178 the preceding analysis is also revealing of the idiosyncrasies of modern legal systems' cosmopolitan attitudes.
6. CONCLUDING THOUGHTS Strasbourg jurisprudence had a striking impact on those European countries that, prior to Salduz, were still not recognizing the right of access to a lawyer in custodial interrogation. Belgium, France, Scotland, the Netherlands and now Ireland have all given effect to the right to legal assistance-or taken significant steps in this direction-under the compelling influence of the Salduz jurisprudence. However, important variations can also be identified in the acceptance of Salduz in these countries. Such variations adversely affect the application of Salduz rights in practice and offer a demonstration of variable degrees of acceptance of ECtHR jurisprudence in Europe. We must also consider Salduz's quite unequivocal message, which provides a useful prism for further exploration of the thesis that when ECtHR case law rests on a coherent rationale and provides contracting parties with clear rules, it can lead them to accept its position. Jackson and Summers made this claim inter alia by treating Salduz as a paradigm of acceptance of ECtHR jurisprudence. But here it was shown that, despite Salduz's clear rules and rationale, this seminal jurisprudence has not been accommodated everywhere with the same level of urgency or commitment to giving the newly recognized rights full effect. This is not to doubt the intuitive force in Jackson's and Summers' argument, or the empirical evidence that they offer, but rather to highlight how their analysis presents an important opportunity to view the Court-centred explanation of acceptance that they provide in combination with other, contracting party-centred explanations of acceptance. Viewed from this wider angle, the issue of the accommodation of Strasbourg jurisprudence in national jurisdictions becomes one that calls into question as much the actions of the ECtHR as it does those of the Member States. This naturally points to the need for a more cosmopolitan approach to applying the ECHR. Contracting parties must strive to obtain a better understanding of the reasons that underpin the development of particular jurisprudential influences coming from Strasbourg. By articulating clear rules and a coherent rationale, the Court will accelerate this process, and so will the contracting parties' own ability to look sideways to other countries' reception of such influences. Conversely, the Court needs to develop a deeper understanding of the local factors that may be hindering (or, by contrast, accelerating) the harmonic reception of its jurisprudence in contracting parties. 179