Crossing Legal Boundaries in Defence of the State
Edited by Aniceto Masferrer and Clive Walker
Chapter 10: The right of access to a lawyer in terrorist cases
In the mind of the average person, certainly in States that have long been democracies, it is highly likely that an assumption would be made that if someone is suspected of having committed a crime, and is questioned by the police about that crime, he or she should immediately be entitled to consult privately with a lawyer. It would be acknowledged that in practice not all suspects would insist upon such assistance, especially if they know that they are innocent of the alleged crime. However, most people would nevertheless accept that, as part and parcel of the rule of law, the help of a lawyer, if not waived on the basis of fully informed consent, should always be available as of right. Sadly, such an assumption would not reflect today’s legal reality in most if not all countries. The right of access to a lawyer, if it is guaranteed at all, can be subjected to restrictions if certain conditions are met. Moreover, those conditions tend to be easier to meet, or the restrictions tend to be more extensive, if the alleged criminal is suspected of having terrorist motives. The traditional justification for such restrictions is that a higher good is at stake than the right of the individual detainee. It could be the safety of the community, the interests of victims, or the effectiveness of the justice system. Defence lawyers, we are often reminded, owe a duty to their legal system and their profession as well as to their clients.
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