Strasbourg jurisprudence, law reform and comparative law: A tale of the right to custodial legal assistance in five countries

Abstract

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.