THE ROLE OF JUDGES  Judges have a particular role to identify if an accused before them may have been subjected to ill-treatment while in police or other custody, as well as to exclude evidence obtained by torture or ill-treatment from criminal proceedings. In most jurisdictions the detainee is brought before a detention judge at an early stage after their arrest (for example, as part of a hearing to authorise the initial holding or an extension of holding of the arrested person, or as part of the investigation itself), and the detainee or his/her lawyer may make a complaint about torture or illtreatment. Even if a specific complaint is not made, experience or training may enable the judge to be alert to and to make inquiries into any indications of ill-treatment, such as visible injuries or the detainee’s general appearance and demeanour. The law should enable the judge to respond immediately when there is any suggestion of illtreatment. This may include requiring the judge to record the allegations or visible injuries in writing, ordering an immediate medical examination of the suspect, or ordering an investigation. Many countries allow challenges to the admissibility of evidence in “pre-trial hearings”, in advance of the trial. Early challenges to “torture evidence” can be important, particularly when a confession obtained by torture is the only evidence linking an accused person to a crime, and this is the basis upon which an accused person is in pretrial detention. In other countries the judge will consider the admissibility of any confession at the beginning of the trial, in a process sometimes known as a “trial of the issue” or a “voir dire”. This has a number of advantages: (a) it adds to the efficiency of the trial, as witnesses (and sometimes a jury) are not kept waiting; (b) by getting the preliminary issue out of the way the judge can then plan the trial; (c) this may be the first time the defendant has a lawyer, and so they can consider the evidence against them carefully; and (d) for countries with jury trials this means that, if the defendant is successful in excluding evidence, the jury never becomes aware of the excluded evidence, ensuring they are not prejudiced by it. Because of these advantages, some countries require applications to be made at the start of the case. However, in practice, it is not always possible for the defendant to raise these issues so early in the proceedings, and a number of the countries have sought to address this by creating some flexibility. African Commission on Human and Peoples’ Rights: evidence obtained by coercion or force interferes with fair trial rights The Principles and Guidelines on the Right to a Fair Trial and Legal assistance in Africa, adopted in 2003 by the African Commission on Human and Peoples’ Rights in Luanda, state that “any confession or other evidence obtained by any form of coercion or force may not be admitted as evidence or considered as probative of any fact at trial or in sentencing” (Section N(6)(d)(1)). Kenya: court conducts “trial within a trial” on the admissibility of torture evidence The Kenyan Constitution does not allow evidence that contravenes any right or freedom in the Bill of Rights to be used in a trial; otherwise it would render the trial unfair and would be detrimental to the administration of justice. Practically, the prosecution has to inform the court of their intention to produce a confession as evidence, and if the accused objects to this, then the court will conduct a “trial within a trial” with the primary purpose to establish TOOL: Non-admission of evidence obtained by torture and ill-treatment 8/15