Edition 2, May 2013

LEGAL COMMENTARY 

  1. Seafarers are recognized as a special category of worker.[1] Given the international nature of the shipping industry and the different jurisdictions within which seafarers may face criminal prosecution, seafarers need special protection when facing criminal prosecution in order to receive fair trials.

 

  1. For seafarers some of the most important constituent elements of their right to a fair trial are their rights to have free interpretation and translation services; to have their legal rights explained to them; to have legal representation during pre-trial proceedings as well as trial proceedings; and when cooperating in a no-blame investigation to have their communications with the investigators kept confidential.

 

  1. The extent to which all these rights have not, according to the seafarers, been accorded to them is a matter of deep concern. This commentary contextualises the importance, nature and extent of these rights with particular reference to seafarers.

 

Interpretation and translation services

 

  1. Since most seafarers voyage between different criminal jurisdictions, the prospect of being interrogated in a foreign language and being confronted by criminal charges in a foreign language, is a risk of high probability. The right to interpretation and translation services is expressly enshrined in various international legal instruments,[2] and is part of the national law of many states.

 

  1. When a seafarer is not conversant with the language of the court, he is at an obvious disadvantage if he is not provided with a written translation of the indictment in a language he understands.[3] So, a seafarer charged with an offence, who cannot understand or speak the language used in court, has the right to the free services of an interpreter and/or translator in order for him to have a fair trial;[4] and the absence of such services is a clear violation of the right to a fair trial.[5] The widespread denial of the right to the services of an interpreter and a translator, as strongly suggested in this survey, is therefore a matter of deep concern.

 

  1. The right to the services of an interpreter and translator applies not only to oral statements and documentary material at the trial proceedings but also to pre-trial proceedings. [6]

 

  1. This right does not, however, extend so far as to require a written translation of all written evidence or official documents; but the services of an interpreter or translator must be enough to enable the seafarer to have knowledge of the case against him and also to defend himself by being able to put before the court his version of the events.[7]

 

  1. Special attention should be paid to the language of the indictment, which plays a crucial role in the criminal process, since service of the indictment formally puts the seafarer on written notice of the factual and legal basis of the criminal charge against him.[8]

 

  1. The obligation of the authorities is not only to appoint a properly qualified interpreter and translator, but also to exercise a degree of control over the adequacy of the services of the interpreter and/or translator if they are put on notice by the seafarer that the services are inadequate.[9]

 

  1. The seafarer and/or his legal representative may however waive the right to interpretation and translation services.[10]

 

Legal rights explained

 

  1. It is an inherent part of the right to a fair trial that seafarers who are suspected of committing a crime should have their legal rights explained to them. Since the rights of seafarers facing criminal charges will differ from jurisdiction to jurisdiction and seafarers cannot be expected to know of these differences, the right to an explanation of their rights is of crucial importance to seafarers.

 

  1. Theoretical explanations of the rights of seafarers by persons other than their legal representatives may, however, not be sufficient. In respect of the right to silence, for example, it is imperative that before a seafarer is interrogated by the police he has the opportunity of consulting his legal representative so that he may be advised not merely of his right to silence, but also whether or not it is in the best interests of the seafarer to exercise that right by saying nothing at all or by making a limited statement.[11]

 

  1. It makes no difference that the police may already have advised the seafarer of his right to silence;[12] or that there is a video recording of the police interrogation.[13] Instead, the seafarer must be given the opportunity to be advised by his legal representative not to make incriminating statements, whatever other inclination the seafarer may have.[14]

 

  1. If a seafarer is being interviewed by a police officer as a witness, then the right to silence is not in play. Just when the seafarer is to be regarded as a suspect instead of a witness may sometimes be difficult to define, even for an experienced police officer.[15] But once the police officer (acting honestly and conscientiously) realizes – or should realize – that the seafarer is under serious consideration as the perpetrator of the crime, the seafarer should enjoy the right against self-incrimination and the right to legal representation.[16]

 

Legal representation

 

  1. The right of an accused person to legal representation is a right explicitly recognised in many international instruments (including the International Covenant on Civil and Political Rights,[17] the African Charter on Human and Peoples’ Rights,[18] the American Convention on Human Rights,[19] the Standard Minimum Rules for the Treatment of Prisoners,[20] and the European Convention on Human Rights);[21] as well as in many national constitutions, and in much case law[22] where it has been described as a right of “paramount importance”[23] that “must .. lie near” the “heart” of a fair trial.[24]

 

  1. The precise nature and extent to the right to legal representative for seafarers varies from jurisdiction to jurisdiction, and even states party to conventions may give different effect to the right. The European Convention on Human Rights, for example, gives to the contracting states considerable freedom in choosing the means of ensuring that the Convention rights are secured in their judicial systems; [25] and, if the national law is obscure, uncertain or open to different interpretations, the European Court of Human Rights will interpret the national law in the manner that most closely corresponds with the Convention.[26]

 

  1. The Convention rights are designed to “guarantee not rights that are theoretical or illusory but rights that are practical and effective.” [27] It is central to the concept of a fair trial that an accused is not denied the opportunity to present his case effectively before the court and that he is able to enjoy equality of arms with the opposing side.[28]

 

Right of seafarer to enjoy equality of arms

 

  1. Many of the rights to a fair trial would have little practical meaning to a seafarer without the aid of counsel to protect his rights.[29] Without legal assistance, a seafarer may not be in a position to protect himself from abuses at the hands of authorities and that may adversely affect his defence and his right to a fair trial.

 

  1. So, the right of a seafarer to legal representation is a most important aspect of the right to a fair trial.[30] It is intended to ensure equality of arms[31] and the right to an effective defence.[32] The United States Supreme Court has observed in its internationally recognised Miranda judgment[33] (based on the Fifth Amendment of the United States Constitution) that:

 

“Even the intelligent and educated layman has no skill in the science of law … Left without the aid of counsel he may be put on trial without a proper charge and be convicted upon incompetent evidence … He lacks both the skill and knowledge adequate to prepare his defence even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, although he may not be guilty, he faces the danger of conviction because he does not know how to establish his innocence.”

 

  1. For an isolated seafarer in a foreign state facing criminal charges in a strange and unfamiliar legal system the need for a lawyer to ensure a fair trial would be even greater than it would for an accused facing criminal charges in his own national state.

 

Vulnerability of seafarer during police interrogation

 

  1. There are clear judicial views to the effect that a custodial interrogation by police of a suspect is inherently coercive,[34] the suspect being in a particularly vulnerable position[35] and in a setting where the prosecutorial forces have the upper hand.[36] The right of a suspect to a legal representative is therefore intended to compensate for this vulnerability, avoiding the risk that the police may be tempted by the vulnerability of the suspect to use coercion or oppression to obtain evidence from the suspect.[37]

 

  1. The right to representation exists regardless of the consideration that a suspect, who is a national of the jurisdiction, may reasonably be expected to understand the language of interrogation and to have, at least to a degree, some knowledge of pre-trial and trial proceedings in his own country. The same cannot be expected of a seafarer from abroad who finds himself being subjected to police interrogation in a foreign, unfamiliar and strange jurisdiction, isolated and removed from his normal environment.[38]

 

  1. For a seafarer to be without legal representation in such a setting should, it is argued, be presumed to be harmful to the defence of the seafarer, so that he should not be under the burden of having to adduce evidence of actual prejudice[39] in order to show that his right to a fair trial was violated.   For a seafarer alone and isolated in police custody this could be a difficult burden to discharge in the face of countervailing evidence brought by police with recourse to overwhelming resources.

 

  1. Even assuming that the seafarer has full theoretical knowledge of all his rights in a foreign jurisdiction (which seems most unlikely), it is only an experienced and skilled legal representative who can effectively and best protect the seafarer from the risk of compelled self-incrimination, and also advise the seafarer whether or not to exercise his right to silence or to cooperate and make an admission or a confession (if it would probably result in a reduced sentence), and/or generally to assist the seafarer.[40]

 

Right of seafarer to legal representation during pre-trial proceedings

 

  1. Under the European Convention on Human Rights, for example, the rights of a seafarer to a fair trial would in principle be irretrievably prejudiced when incriminating statements made by a seafarer during police interrogation – without access to his legal representative – are used to obtain his conviction.[41] The right to a legal representative therefore applies to pre-trial proceedings.[42] The precise and practical manner in which the right to legal representation is to be applied during pre-trial proceedings depends, however, on the special features of the proceedings and the circumstances of the case taken as a whole.[43]

 

  1. Nonetheless, a seafarer should, for example, have the benefit of the assistance of a legal representative at the initial stages of interrogation, that is, from the first police interrogation of the seafarer.[44] However, the absence of a lawyer may (at least in respect of some periods of police interrogation), not be held to be a denial of the right to legal representation provided, for example, the legal representative does not request permission to be present at the police interrogation and if the criminal proceedings – when viewed in their entirety and as a whole – are considered by the court to have been fair.[45]

 

  1. But to deny a seafarer access to a legal representative for the first 48 hours of police interrogation, if the rights of the seafarer may have been irretrievably prejudiced is – whatever the justification for the denial – incompatible with the right of a seafarer to a legal representative.[46] Similarly, if the prosecutor supervises the meeting when the seafarer consults with his lawyer, without showing sufficient grounds why such supervision is necessary and justified,[47] the right to legal representation is violated. The permissible grounds for such supervision are narrow; and might exist only if there is a risk of collusion between the seafarer and his lawyer[48] or if the professional ethics of the lawyer or the lawfulness of his conduct is called into question.[49] Supervision by police officers of the consultation between the seafarer and his lawyer would also violate the right to legal representation where, for example, the police officers, being in the same room and listening to the conversation between the seafarer and his lawyer, interrupt the conversation, warning that any discussion of the case would result in the consultation being stopped.[50]

 

  1. The prejudice that a seafarer suffers as a result of the denial of the right to legal representation may take various forms, for example: self-incriminating statements;[51] or statements which enable the police to obtain incriminating evidence from another source which is then used against the seafarer at his trial;[52] or ill-treatment by the police;[53] or the use of coercion or oppression[54] or promises[55] by the police to obtain evidence from the seafarer; or any other police inadequacy or police exploitation of the seafarer while he is in a vulnerable situation and without the assistance of his lawyer.[56]

 

Right of seafarer to communicate confidentially with his lawyer

 

  1. For the right to legal representation to be practical, a detained seafarer has the right to communicate freely and confidentially with his legal representative. If the legal representative is unable to consult with, and receive confidential instructions from, the seafarer, the assistance rendered by the legal representative would lose much of its effectiveness; whereas the European Convention on Human Rights, for example, is intended to guarantee effective and practical rights.[57] The right to a confidential consultation encourages open and honest communication between a seafarer and his lawyer, which is a most important part of the right of a seafarer to defend himself against a criminal charge[58] and to receive a fair trial.

 

  1. The right to legal representation includes in effect the right of a seafarer to communicate with his legal representative out of hearing of a third party so that the legal representative may receive confidential instructions; although consultations between the seafarer and his legal representative within sight of the authorities[59] would not violate the right of the seafarer to a fair trial.

 

The right of a seafarer to free legal representation

 

  1. Under the European Convention on Human Rights, for example, the institution of a legal aid scheme constitutes one of the means that a state may employ to guarantee the rights enshrined in the Convention.[60] Here, a seafarer has the right to free legal assistance provided the seafarer does not have sufficient means to pay for legal assistance and the interests of justice require that he be given legal representation.[61] The right to free legal assistance under that Convention is therefore subject to limitation and is not an absolute right.[62]

 

  1. There are other limitations. The right of a seafarer under article 6(3)(c) of the European Convention on Human Rights to “defend himself … through legal assistance of his own choosing” does not, despite its imprecision, connote a right to an unlimited number of legal representatives; [63] instead, its purpose is to ensure that the seafarer’s case is heard by giving the seafarer – as necessary – the assistance of an independent legal professional.[64] The right to legal representation is further limited by, for example, the state’s right to regulate the appearance of lawyers before the courts; the obligation of the lawyer not to transgress the professional ethics governing his profession;[65] and the obligation of the lawyer not to support any criminal activity by the seafarer.[66]

 

  1. Nonetheless, the right to free legal representation can be invoked where, for example, the potential sentence is severe; or a wide range of different options are available to the court; or the personal circumstances of the seafarer are complicated; or legal assistance is required for the adequate presentation of the case for the seafarer;[67] or the case is generally complex;[68] or the relevant law and procedure is complex;[69] or what is at stake is of high importance;[70] or the seafarer does not have capacity to present himself.[71]

 

  1. The right to legal representation must be practical and effective. A failure of the court to allow a seafarer or his legal representative to address the court, especially where deprivation of liberty is at stake, is an egregious breach of natural justice and a violation of, for example, article 6 of the European Convention on Human Rights.[72]
  2. A seafarer may, however, waive his right to a lawyer, provided he does so willingly                 and knowingly.[73] So, if a seafarer declines to exercise his right to legal advice, a court might have to consider whether, having regard to all the circumstances, he has effectively waived his right under the European Convention on Human Rights.[74]
  3. It is, however, unlikely to be the case that the courts would find that many seafarers have waived their right to legal representation, since the survey reveals that very many seafarers have requested legal representation.

Rights of seafarers when cooperating as witnesses in a no-blame investigation  

  1. The International Standards and Recommended Practices for a Safety Investigation into a Marine Casualty or Marine Incident (“the Code”) [75] is relevant to the reluctance of seafarers to cooperate with casualty and incident investigators. The application of the Code (except for Part III) is mandatory for states party to the Safety of Life at Sea Convention.[76]
  2. When a casualty, incident or accident occurs, an investigation which does not seek to “apportion blame or determine liability” under the Code[77] may run in parallel with a separate criminal investigation, both proceedings arising out of the same factual matrix.
  3. The reluctance of some seafarers to cooperate with casualty and incident investigators stems, according to the seafarers, from a fear of implication in the commission of a crime.   If seafarers could be assured that their cooperation with casualty and incident investigators in a no-blame investigation cannot lead to their implication, their cooperation should be greatly enhanced.
  4. The mandatory provisions of the Code appear to provide a reasonable assurance that the cooperation of a seafarer with the casualty and incident investigators should not result in the disclosure of information from the marine safety record, which would otherwise implicate the seafarer in the commission of a crime.
  5. But the recommendatory provisions in Part III of the Code do not provide the same level of assurance. In Part III of the Code it is provided that:

”23.1 States should ensure that investigator(s) carrying out a marine safety investigation only disclose information from a marine safety record where: .1 it is necessary or desirable to do so for transport safety purposes and any impact on the future availability of safety information to a marine safety investigation is taken into account; or .2 as otherwise permitted in accordance with this Code.

23.2 States involved in marine safety investigation under this Code should ensure that any marine safety record in its possession is not disclosed in criminal, civil, disciplinary or administrative proceedings unless: .1 the appropriate authority for the administration of justice in the State determines that any adverse domestic or international impact that the disclosure of the information might have on any current or future marine safety investigations is outweighed by the public interest in the administration of justice; and .2 where appropriate in the circumstances, the State which provided the marine safety record to the marine safety investigation authorizes its disclosure”.

  1. This provision contains no mandatory rules against the disclosure of information (including self-incriminating statements taken from a seafarer), from a marine safety record[78] in a casualty and incident investigation, “should” not “shall” being employed throughout the text which is couched in non-peremptory terms. Furthermore, information is admissible where that is “necessary or desirable” provided “any impact” is “taken into account;” or where disclosure is in the “public interest in the administration of justice” and “where appropriate in the circumstances” the “state” “authorizes its disclosure.”
  2. What is necessary or desirable, what is in the public interest in the administration of justice, and what is appropriate in the circumstances would, in many instances, be open to argument in court. Therefore there can be no absolute guarantee of non-disclosure in advance of cooperation. So, if self-incriminating statements are solicited from a seafarer who is fully, frankly and honestly co-operating with investigators, that evidence might nonetheless be admitted in separate criminal proceedings against the seafarer. For this reason, the reluctance of some seafarers to incriminate themselves in cooperation with casualty and incident investigators is perhaps understandable.

[1] Guidelines on Fair Treatment of Seafarers in the event of a Maritime Accident.

[2] See, for example, article 6(1)(3) of the European Convention on Human Rights provides that: “In the determination … of any criminal charge against him, everyone is entitled to a fair … hearing by [a] tribunal … 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language he understands and in detail, of the nature and cause of the accusation against him … (e) to have the free assistance of an interpreter of he cannot understand or speak the language used in court;” article 14(3)(a) of the International Covenant on Civil and Political Rights provides that in the determination of any criminal charge against him everyone shall be entitled “to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;” article 8(2)(a) of the America Convention on Human Rights which refers to “the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court;” and principle 14 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment which provides that: “A person who does not adequately understand or speak the language used by the authorities responsible for his arrest, detention or imprisonment is entitled to receive promptly in a language which he understands the information referred to in principle 10, principle 11, paragraph 2, principle 12, paragraph 1, and principle 13 and to have the assistance, free of charge, if necessary, of an interpreter in connection with legal proceedings subsequent to his arrest.”

[3] Case of Kamasinske v Austria (Application no. 9783/82) 19 December 1989 at para 79.

[4] Case of Kamasinske v Austria (Application no. 9783/82) 19 December 1989 at para 74.

[5] See, for example, the Case of Brozicek v Italy (Application no. 10964/84) 19 December 1989.

[6] Case of Kamasinske v Austria (Application no. 9783/82) 19 December 1989 at para 74.

[7] Case of Kamasinske v Austria (Application no. 9783/82) 19 December 1989 at para 74.

[8] Case of Kamasinske v Austria (Application no. 9783/82) 19 December 1989 at para 79.

[9] Case of Kamasinske v Austria (Application no. 9783/82) 19 December 1989 at para 74.

[10] Case of Kamasinske v Austria (Application no. 9783/82) 19 December 1989 at para 80.

[11] Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 108.

[12] Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 108.

[13] Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 108.

[14] Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 108.

[15] Chalmers v HM Advocate 1954 JC 66 at 81-82; Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 85. .

[16] Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 85.

[17] Article 14 (1) (b) “To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing” and article 14(1)(d) “To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it …”.

[18] Article 7 “Every individual shall have the right to have his cause heard. This comprises: … (c) the right to defence, including the right to be defended by counsel of his choice;..”.

[19] Article 8(2) “… During the proceedings, every person is entitled, with full equality, to the following minimum guarantees: … (d) the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel.” The Inter-American Court of Human Rights in an Advisory Opinion OC-18/03 of 17 September 2003 requested by the United Mexican States opined that: ”The right to judicial protection and judicial guarantees is violated for several reasons: owing to the risk a person runs, when he resorts to the administrative or judicial instances, of being deported, expelled or deprived of his freedom, and by the negative to provide him with a free public legal aid service, which prevents him from asserting the rights in question.” And,

[20] “For the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions. For these purposes, he shall if he so desires be supplied with writing material. Interviews between the prisoner and his legal adviser may be within sight but not within the hearing of a police or institution official.”

[21] Article 6(3) “Everyone charged with a criminal offence has the following minimum rights: … (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require …”.

[22] See, for example, the Case of S v Switzerland in the European Court of Human Rights of 28 November 1991 (Application no. 12629/87; 13965/88).

[23] Case of John Murray v The United Kingdom on the European Court of Human Rights 8 February 1996 (Application no. 18731/91) at para 66.

[24] Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 93.

[25] Case of Quaranta v Switzerland 24 May 1991 (Application no. 12744/87) at para 30; Case of Rybacki v Poland (Application no. 52479/99) 13 January 2009 at para 54.

[26] See the partly dissenting opinion of Judge Foighel in Case of Benham v United Kingdom (Application no. 19380/92) 10 June 1996.

[27] Artico v Italy (A/37) (1980) 3 EHRR 1 at para 33 cited, for example, in Imbrioscia v Switzerland (1994) 17 EHRR 441 ECHR at para 71.

[28] Case of Steel and Morris v United Kingdom (Application no. 68416/01) 15 February 2005 at para 59.

[29] Imbrioscia v Switzerland (1994) 17 EHRR 441 ECHR at para 71.

[30] Case of Quaranta v Switzerland 24 May 1991 (Application no. 12744/87) at para 27.

[31] Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 33; Case of Steel and Morris v United Kingdom (Application no. 68416/01) 15 February 2005 at para 59. In theCase of Steel and Morris v United Kingdom (Application no. 68416/01) 15 February 2005 at para 62 it was however held that it is not incumbent on a state to ensure total equality of arms, as long as each side is afforded a reasonable opportunity to present their case.

[32] Imbrioscia v Switzerland (1994) 17 EHRR 441 ECHR at para 71.

[33] Miranda v Arizona 384 US 436 at 478-479.

[34] Imbrioscia v Switzerland (1994) 17 EHRR 441 ECHR at para 71.

[35] Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 33.

[36] Imbrioscia v Switzerland (1994) 17 EHRR 441 ECHR at para 71.

[37] Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 67.

[38] See, for example, the minority opinion in Imbrioscia v Switzerland (1994) 17 EHRR 441 ECHR at para 71.

[39] Imbrioscia v Switzerland (1994) 17 EHRR 441 ECHR at para 71 in relation to the dissenting opinion of Judge Loucaides.

[40] Imbrioscia v Switzerland (1994) 17 EHRR 441 ECHR at para 71 in relation to the dissenting opinion of Judge Loucaides.

[41] Sukran Yildiz v Turkey (Application no. 4661/02) 3 February 2009; Amutgan v Turkey (Application no. 5138/04) 3 February 2009 paras 17-18; Plonka v Poland (Application no. 20310/02) 31 March 2009 at para 35; Pishchalnikov v Russia (Application no. 7025/04) 24 September 2009 at para 70; Dayanan v Turkey (Application no. 7377/03) 13 October 2009 at paras 32-33; Fatma Tunc v Turkey (Application no. 18532/05) 13 October 2009 at paras 14-15; and Salduz v Turkey (2008) 49 EHRR 421.

[42] Case of Rybacki v Poland (Application no. 52479/99) 13 January 2009 at para 54.

[43] Case of Rybacki v Poland (Application no. 52479/99) 13 January 2009 at para 55.

[44]Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 70.

[45] Imbrioscia v Switzerland (1994) 17 EHRR 441 ECHR.

[46] Case of John Murray v The United Kingdom on the European Court of Human Rights 8 February 1996 (Application no. 18731/91) at para 66.

[47] Case of Rybacki v Poland (Application no. 52479/99) 13 January 2009 at para 58.

[48] Case of Rybacki v Poland (Application no. 52479/99) 13 January 2009 at para 59.

[49] Case of Rybacki v Poland (Application no. 52479/99) 13 January 2009 at para 59.

[50] Case of Rybacki v Poland (Application no. 52479/99) 13 January 2009 at para 60.

[51] Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 33.

[52] Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 50.

[53] Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 44.

[54] Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 67.

[55] Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 108.

[56] Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 108.

[57] Case of Rybacki v Poland (Application no. 52479/99) 13 January 2009 at para 56.

[58] Case of Rybacki v Poland (Application no. 52479/99) 13 January 2009 at para 56; Oferta Plus SRL v Moldova (Application no. 14385/04) 19 December 2006 at para 145..

[59] Case of S v Switzerland (Application no. 12629/87; 13965/88) at para 48. In article 93 of the Standard Minimum rules for the Treatment of Prisoners it is provided that: “For the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal advisor with a view to his defence and to prepare and hand to him confidential instructions. For these purposes, he shall if he so desires be supplied with writing material. Interviews between the prisoner and his legal adviser may be within sight but not within the hearing of a police or institution official.”

[60] Case of Steel and Morris v United Kingdom (Application no. 68416/01) 15 February 2005 at para 60 there are other means of guaranteeing the implementation of Convention rights such as simplifying the applicable procedure.

[61] Case of Quaranta v Switzerland 24 May 1991 (Application no. 12744/87) at para 27.

[62] Ensslin, Baader, and Raspe v Federal Republic of Germany (Application no. 7572/76, 7586/76 et 7587/76 at para 20; Case of Rybacki v Poland (Application no. 52479/99) 13 January 2009 at para 54.

[63] Ensslin, Baader, and Raspe v Federal Republic of Germany (Application no. 7572/76, 7586/76 et 7587/76 at para 20.

[64] Ensslin, Baader, and Raspe v Federal Republic of Germany (Application no. 7572/76, 7586/76 et 7587/76 at para 20.

[65] Ensslin, Baader, and Raspe v Federal Republic of Germany (Application no. 7572/76, 7586/76 et 7587/76 at para 20.

[66] Ensslin, Baader, and Raspe v Federal Republic of Germany (Application no. 7572/76, 7586/76 et 7587/76 at para 20.

[67] Case of Quaranta v Switzerland 24 May 1991 (Application no. 12744/87) at para 33 to 37.

[68] Case of Benham v United Kingdom (Application no. 19380/92) 10 June 1996.

[69] Case of Steel and Morris v United Kingdom (Application no. 68416/01) 15 February 2005 at para 61

[70] Case of Steel and Morris v United Kingdom (Application no. 68416/01) 15 February 2005 at para 59.

[71] Case of Steel and Morris v United Kingdom (Application no. 68416/01) 15 February 2005 at para 61.

[72] Hooper v United Kingdom (2005) 41 EHRR 1 275 at para 20.

[73] Case of Benham v United Kingdom (Application no. 19380/92) 10 June 1996 at para 60.

[74] Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 96.

[75] The Code comprises the annex to resolution MSC.255(84) of the International Maritime Organization.

[76] The Code came into effect on 1 January 2010.

[77] Chapter 1.1 of the Code states that “… Marine safety investigations do not seek to apportion blame or determine liability …”.

[78] In Chapter 2.15 of the Code, a “marine safety record” is defined to mean “the following types of records collected for a marine safety investigation: .1 all statements taken for the purpose of a marine safety investigation; .2 all communications between persons pertaining to the operation of the ship; .3 all medical or private information regarding person involved in the marine casualty or marine incident; .4 all records of the analysis of information nor evidential material acquired in the course of a marine safety investigation; and .5 information from the voyage data recorder.”