Day 2: Evidence tainted by torture in law and practice - The perspective of legal practitioners

Welcome to Day 2!

During the Online Discussion, taking place in the week of 21-25 February 2022, we will publish the written contributions of a number of renowned experts on selected topics concerning the inadmissibility of evidence tainted by torture. We recommend visiting the Online Discussion page this entire week to read diverse perspectives!

Today you can read the contributions of Rupert Skilbeck, REDRESS, and Catherine Kent, IBAHRI. Amongst others, the contributors tackle the potential role of legal practitioners in the exclusion of evidence obtained by torture as well as the question of the burden of proof.

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Pose your questions or share your experiences: Comment on this post. Please also feel free to share your own relevant publications on the topic.

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Disclaimer: The content of the contributions represents the authors’ individual experience and perspective. The opinions stated in these articles are the authors’ own and do not reflect the views of ODIHR or the LBI-GMR.

Introduction

In the early 1980s, the British public had lost confidence in the police, due to the many miscarriages of justice that had taken place in the 1970s, most notably those of the Birmingham Six and the Guildford Four. Many ordinary people in the street were of the view that the police had used torture to obtain false confessions. The criminal justice system until that time relied on the “Judges’ Rules” to regulate the admissibility of such confessions, which were easily manipulated by those with an ulterior purpose. Lord Denning, as Master of the Rolls (the most senior civil judge in England and Wales) when faced with a civil claim brought by the Birmingham Six for the miscarriage of justice against them was clear as to what his ulterior purpose was:

“Just consider the course of events if their action were to proceed to trial
 If the six men failed it would mean that much time and money and worry would have been expended by many people to no good purpose. If they won, it would mean that the police were guilty of perjury; that they were guilty of violence and threats; that the confessions were involuntary and improperly admitted in evidence; and that the convictions were erroneous
 That was such an appalling vista that every sensible person would say, ‘It cannot be right that these actions should go any further’.”

The government thought otherwise. A Royal Commission on Criminal Procedure made recommendations for significant changes in a 1981 report, which led to the Police and Criminal Evidence Act 1984, which contained significant anti-torture safeguards.

Counsel for the Prosecution

As a junior barrister in the 1990s I often acted for the prosecution, both the Crown Prosecution Service and Customs and Excise who were responsible for the prosecution of drug importation cases. One of the peculiarities of the English criminal justice system is that barristers can act for both the prosecution and the defence, sometimes on the same day (although obviously not in the same case :)). In drugs cases there are often confessions, but these can sometimes be unreliable where suspects are either on drugs or withdrawing from them. While this (probably) would not amount to torture or ill- treatment, there was a risk that the police might take advantage of the situation in an oppressive way.

Section 76 of the Police and Criminal Evidence Act (PACE) puts in place a strong reverse burden of proof. It was for me as the representative of the Crown to convince the judge – to the criminal standard – that the confession had not been obtained by “oppression”. This was done by calling the police officer or customs officer who had conducted the interview to describe how they had carefully followed the procedures set out in Code C of PACE to the letter, and often by calling the custody sergeant who had responsibility for ensuring that all those entering a police station were properly processed, and who kept a detailed log of what happened to that detainee minute by minute. Code C also required the tape recording of interviews, and so the court could consider the words or even tone of voice of the interview itself. And PACE also required that a lawyer was present, which was almost always the case.

A reverse burden of proof is a very powerful tool, if judges take it seriously. There is essentially a presumption that the confession was unlawful, unless the state can prove otherwise. For the prosecution, this required a concerted effort for the confession to be admitted in evidence. For the police, it required them to follow strict procedures. The legislation had an instant impact, making it almost impossible for forced confessions to be used to secure a conviction, and at a stroke eliminating one of the strongest incentives for torture.

Tainted by Torture

REDRESS and Fair Trials conducted research a few years ago into the use of evidence obtained by torture in the criminal justice process, and produced a report Tainted by Torture that presented our findings. International law is quite clear that there must be safeguards against torture in the criminal justice system, including a strong reverse burden of proof when it comes to the consideration of forced confessions. Yet our research demonstrated that a clear presumption was lacking from most national systems, even those of quite developed democracies.

As has been well documented, in many countries the police rely on confessions as their main form of securing convictions, in the absence of other effective investigation methods, and given the scarce resources available to them. Our research revealed that even in those countries where there was a legal process to exclude evidence, it was often not effective in practice. There was a particular problem in monist systems, where international law was deemed to apply directly, but without a practical safeguard in place that controlled the way that a decision to exclude a confession was made, those international standards were worthless. In many countries there was no regime at all, but only a general approach to considering the probative value of evidence.

The report came up with a number of suggestions for how things could be improved. More training for police and judges. A focus on rights-compliant investigations. Further research. Gathering of data. But most simply – the introduction of an explicit regime for the admission of evidence alleged to have been obtained by torture or ill-treatment that put in place a strict reverse burden of proof.

A proposal

What would be the impact of the introduction of a relatively simple safeguard against torture? In England and Wales it was accompanied by other safeguards such as the use of a custody sergeant, and the tape recording of interviews, as well as the provision of a ‘duty solicitor’ to provide legal advice. And the cost of PACE ended up being much greater than initially anticipated, mainly due to the lawyers. But given advances in technology, the cost of recording interviews must now be minimal compared with the cost of unpicking miscarriages of justice.

Of course, the reverse burden of proof and tape recording of interviews are only one of a number of safeguards that can be put in place, most notably the encouragement of an alternative to beating and threatening suspects, through the use of investigative interviews as promoted in the recent Mendez Principles for Effective Interviewing.

But the human rights advocate in me wonders: what would be the impact if we ran a concerted five year campaign to introduce a robust reversal of proof in 50 jurisdictions? And give other 20-something junior prosecutors the same challenge that I faced to persuade the judge that torture had not taken place?

Rupert Skilbeck, Director, REDRESS
Rupert Skilbeck is the Director of REDRESS, which brings legal claims on behalf of survivors of torture around the world.

He was previously the Director of Litigation at the Open Society Justice Initiative, and led the defence at the Khmer Rouge Tribunal, the Bosnia War Crimes Court, and the Special Court for Sierra Leone. He is a barrister, and practiced at the criminal bar in London from 1995 to 2004.

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The exclusionary rule is clearly enshrined in international law, standards and norms (see, e.g., Article 15, UN Convention against Torture (UNCAT); Report of the Special Rapporteur on torture, Juan E. MĂ©ndez (April 2014) [17, 22]). Despite this, a gap in national implementation remains and routine reliance on torture-tainted evidence persists, including in countries with an express exclusionary regime (REDRESS and Fair Trials. Tainted by Torture: Examining the Use of Torture Evidence (2018) pgs. 8, 37-38). This blog post outlines procedural aspects of domestic implementation in law, policy and practice in the context of judicial proceedings and highlights the role of the legal profession in upholding the exclusionary rule to prevent the admissibility of torture-tainted evidence.

Domestic frameworks

Many countries’ legislative frameworks contain normative provisions regarding the exclusionary rule (see, e.g., APT and CTI. Guide on anti-torture legislation (2016) pg. 28). However, international human rights law permits States discretion regarding the specific nature of exclusionary procedures (Fair Trials and OSCE ODIHR. Eliminating incentives for torture in the OSCE region: Baseline study and practical guidance (2020) (hereinafter “Eliminating Incentives Report” [36]). As noted by the Convention against Torture Initiative (CTI):

“States have developed, in accordance with their laws and judicial practices, various processes to exclude evidence obtained by torture or ill-treatment. Some States adopt a two-stage process: an initial stage of triggering an exclusion procedure, either requiring a credible complaint of torture or ill-treatment, or initiated by the judge; and second, a stage of establishing whether the material at issue was obtained by torture or ill-treatment.” (CTI. UNCAT Exclusionary Rule Tool 8/2020: Non-Admission of Evidence Obtained by Torture and Ill-Treatment: Procedures and Practices (2020) (hereinafter “CTI Tool 8/2020”) pg. 9.)

This can occur at different points in judicial proceedings, including during pre-trial/preliminary hearings or as a “trial within a trial” (voir dire). Such an approach ensures that the defendant can testify about the admissibility of evidence without the risk of self-incrimination from cross-examination on matters that could influence a guilty verdict (CTI Tool 8/2020, pg. 9).

National legislative frameworks should define clear procedures to be taken by courts if evidence appears to have been obtained through torture or ill-treatment and establish mechanisms by which evidence may be declared inadmissible (c.f. Report of the Special Rapporteur on torture, Juan E. MĂ©ndez (April 2014) [24]). Under Article 173 of the French Code of Criminal Procedure, the investigating judge or a prosecutor can initiate a procedure to exclude evidence if they suspect it was obtained by torture, upon which an evidence validity challenge is referred to the Investigation Chamber of the Court of Appeal (CTI Tool 8/2020, pg. 6). National frameworks should also include provisions on the handling of evidence itself. For example, under Article 141(5) of the Swiss Criminal Procedure Code, any records relating to inadmissible evidence “shall be removed from the case documents, held in safekeeping until a final judgment has concluded the proceedings, and then destroyed”.

Additionally, national legislation must ensure the mandatory exclusion of torture-tainted evidence, prohibiting the exercise of discretion by national authorities where torture or ill-treatment is alleged (UN Committee against Torture. Report on Mexico (25 May 2003) [220(f)]; Report of the Special Rapporteur on torture, Juan E. MĂ©ndez (April 2014) [82(d)]). In Malawi, under Section 176 of the Criminal Procedure and Evidence Act, forced confessions are admissible if the judge “is convinced beyond reasonable doubt that the confession is materially true” (Initial Report submitted by Malawi to the UN Committee against Torture (March 2020) [69]).

National legislation can, in theory, be reinforced by judicial directives that are binding on judicial authorities. In 2003 and 2004, the Plenum of the Supreme Court of Uzbekistan issued two directives that explicitly prohibit the use of torture to extract confessions and declare torture-tainted evidence inadmissible in court proceedings (Amnesty International. Secrets and Lies: Forced Confessions under Torture in Uzbekistan (2015) pg. 41).

The judiciary

The courts are guarantors of the exclusionary rule, fair trial rights and due process, as well as having an “essential role in overseeing the main components of accountability” (Interim report of the Special Rapporteur on torture, Nils Melzer (July 2021) [28, 39]). The UN Committee against Torture has held that Article 15, UNCAT, implies a positive obligation for State parties to ascertain whether or not statements admitted as evidence in any proceedings for which it has jurisdiction have been made as a result of torture (Communication No. 193/2001: P.E v France (December 2002) [6.3]).

In recent communications, the Committee has found a violation of Article 15 where State parties have failed to verify the substance of a claim that a confession had been obtained under torture and used those confessions in judicial proceedings against the defendant (see, e.g., Communication No. 549/2013: Abdulrahman Kabura v Burundi (January 2017) [7.7]). This includes where courts have failed to, inter alia, “give serious consideration to
allegations of torture when convicting [defendants] on the basis of
confessions” (UN Committee against Torture. Communication No. 477/2011: Ali Aarrass v Morocco (June 2014) [10.8-10.9]). Courts should enquire whether there is a “real risk” that the evidence has been obtained by torture or ill-treatment and, if so, the evidence should not be admitted (Report of the Special Rapporteur on torture, Juan E. MĂ©ndez (April 2014) [82(f)]).

Courts must have an independent procedure to ascertain whether a confession was made voluntarily (UN Committee against Torture. Report on Mexico (May 2003) [202]). They should have the power to exclude torture-tainted evidence, irrespective of any separate criminal investigation into allegations of torture (Eliminating Incentives Report (2020) pg. 36). Courts should not admit extrajudicial confessions that are not corroborated by other evidence or that have been recanted (Eliminating Incentives Report (2020) pg. 37; Report of the Special Rapporteur on torture, Juan E. MĂ©ndez (April 2014) [65]).

The Committee against Torture has also required State parties to, inter alia, judicially review all cases in which convictions were based solely on confessions obtained through torture (Concluding Observations on Afghanistan (June 2017) [28]). In the case of Bayarri v. Argentina, the Inter-American Court of Human Rights held that the Chamber of Appeals’ declaration that a forced confession was invalid and annulment of procedural actions arising therefrom constituted an effective measure to stop the consequences of a violation of judicial guarantees (Judgment: Preliminary Objection, Merits, Reparations and Costs (October 2008) [108]).

In practice, many judiciaries lack guidance on the operationalisation of the exclusionary rule. For example, as of 2016, no ‘practice direction’ or procedural guidance existed for Tunisian judges on steps to take when allegations of forced confessions are raised in court (REDRESS. Legal Frameworks to Prevent Torture in Africa: Best Practices, Shortcomings and Options Going Forward (2016) pg. 35). The UN Committee against Torture has called on Peru to “build the institutional capacity needed in order to disallow statements obtained under torture” and “[c]compile information on criminal proceedings in which judges, either on their own initiative or at the request of parties to the case, have ruled that [torture-tainted] evidence is inadmissible, and the measures taken in that regard” (UN Committee against Torture. Concluding Observations: Peru (December 2018) [19(a) and ©]).

Public prosecutors

As per the UN Guidelines on the Role of Prosecutors (1990), prosecutors shall, inter alia, “respect and protect human dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system” ([12]). Specifically:

“When prosecutors come into possession of evidence against suspects that they know or believe on reasonable grounds was obtained through recourse to unlawful methods, which constitute a grave violation of the suspect’s human rights, especially involving torture or cruel, inhuman or degrading treatment or punishment, or other abuses of human rights, they shall refuse to use such evidence against anyone other than those who used such methods, or inform the Court accordingly, and shall take all necessary steps to ensure that those responsible for using such methods are brought to justice” ([16]).

A similar position is adopted in Article F(l) of the African Commission on Human and People’s Rights’ Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003) and the International Association of Prosecutors’ Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors (1999) ([4(3)(f)]). The latter also highlights that prosecutors shall “examine proposed evidence to ascertain if it has been lawfully or constitutionally obtained” ([4(3)(e)]).

Defence lawyers

Legal and procedural safeguards play a vital role in creating a conducive environment to prevent forced confessions, including access to a lawyer in the first hours of detention and throughout judicial proceedings (see, e.g., Principles on Effective Interviewing for Investigations and Information Gathering (2021) [61-62]). As per the UN Basic Principles on the Role of Lawyers (1990), lawyers shall, inter alia, “seek to uphold human rights and fundamental freedoms recognized by national and international law” ([14]). As part of their duties towards their clients, lawyers should be able to, inter alia, take “legal action to protect their interests” ([13(b)]), including filing motions to dismiss torture-tainted evidence or lodging a criminal complaint of torture. For example, Article 182 of the Chinese Criminal Procedure Law was amended in 2012 to “formalize pre-trial conferences between judges, prosecutors, and defendants and their counsel”, providing the defence with an opportunity to present a formal motion to exclude forced confessions that the court reviews at trial (Amnesty International. No End in Sight: Torture and Forced Confessions in China (2015) pgs. 38-39).

Ways forward

Recognising that the independence of the legal profession is an essential guarantee for the protection and promotion of human rights and, specifically, the implementation of the exclusionary rule, States must ensure that judges, prosecutors and defence lawyers can conduct their work without intimidation, hindrance, harassment or improper interference (see, e.g., UN Basic Principles on the Independence of the Judiciary (1985) [2, 4]).

States should also adopt clear legislation, directives, codes of practice, instructions and guidance on procedures and mechanisms to identify, challenge, determine admissibility and exclude torture-tainted evidence. Sharing examples of best practice and lessons learnt on the Atlas of Torture Exchange Platform is welcome in this regard.

Said national laws, policies and practices should be readily known to, inter alia, judges, prosecutors and defence lawyers and should be fully implemented in practice. In this regard, human rights courts and bodies have required States to provide training to legal professionals on identifying and investigating forced confessions (see, e.g., UN Committee against Torture. Concluding Observations on Cambodia (20 January 2011) [28]), which can serve as a guarantee of non-repetition (Inter-American Court of Human Rights. GarcĂ­a Cruz and SĂĄnchez Silvestre v. Mexico. Judgment: Merits, Reparations and Costs (November 2013) [92-93]).

Catherine Kent, Programme Lawyer, International Bar Association’s Human Rights Institute (Twitter handle: @IBAHRI)

Catherine Kent (LinkedIn) is a Programme Lawyer at the International Bar Association’s Human Rights Institute (IBAHRI). Her current work focuses on human rights in the administration of justice, leading the Institute’s thematic programmes on torture prevention, enforced disappearances and the death penalty.

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Thank you Rupert and Catherine for contributing to this second day of the Online Discussion “The inadmissibility of evidence tainted by torture” with your inspiring contributions and proposals!

To follow up on some of the important points you raised, we would like to invite also others to share any additional thoughts and practices.

Do other countries have any directives, codes of practice, instructions and guidance on procedures and mechanisms on the exclusion of torture-tainted evidence?

What are the main steps to introduce and implement an effective regime of reverse burden of the proof? What the main challenges?

Fell free to share any promising practices or success stories from your countries.

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Re international case law a noteworthy case is also Kouidis v. Greece, UN Human Rights Committee, 2006 - https://juris.ohchr.org/Search/Details/1247 - “On the claim under article 14, paragraph 3 (g) read alone, the Committee notes the Supreme Court was aware of the allegations of ill-treatment. The Committee considers that the obligations under article 14, paragraph 3(g) entail an obligation of the State party to take account of any claims that statements made by accused persons in a criminal case were given under duress. In this regard, it is immaterial whether or not a confession is actually relied upon, as the obligation refers to all aspects of the judicial process of determination. In the present case, the State party’s failure, at the level of the Supreme Court, to take account of the author’s claims that his confession was given under duress, amount to a violation of article 14, paragraph 3(g).”

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Thank you for sharing!