Burden and standard of proof The UN Committee against Torture has consistently stated that the burden of proof rests on the State (prosecutor) to establish that statements were made voluntarily and were not made under torture or illtreatment. As to the standard of proof to exclude the alleged torture or ill-treatment, practice varies across countries from those applying the standard of “real risk” that the evidence was obtained by torture or illtreatment, to those systems applying the civil standard of “balance of probabilities”. The Special Rapporteur on Torture argued in 2014 that the applicant is “only required to demonstrate that his or her allegations are well founded, thus that there are plausible reasons to believe that there is a real risk of torture or ill-treatment”, after which the burden of proof shifts to the Prosecutor or the Court to “inquire as to whether there is a real risk that the evidence has been obtained by unlawful means. If there is a real risk, the evidence must not be admitted”.1 Clear guidelines clarifying what evidence the prosecution needs to produce to prove that there was no torture or ill-treatment (for example, tape recordings and/or medical reports) would assist all relevant actors. Australia: showing a ‘reasonable possibility’ of torture In the Australian Federal courts, once a ‘reasonable possibility’ has been raised that an admission was “influenced by violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or a threat of conduct of that kind” (Evidence Act 1995, Section 84(1)), there are then two considerations, (i) whether the conduct of detectives was violent, oppressive, inhuman or degrading or constituted a threat of that kind; and (ii) whether the Court is satisfied that the admission was not influenced by such conduct. If the prosecution cannot prove, on the balance of probabilities, that the admission was obtained without violence or threat, then that admission is inadmissible and the judge has no discretion to admit the evidence. Section 138 (3) (f) provides further that the Court has to look at “whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights.” England & Wales: State must prove ‘beyond a reasonable doubt’ that oppression was not used In England and Wales, section 76 of the Police and Criminal Evidence Act 1984 provides that where there are representations to the court that a confession was or may have been obtained by “oppression or in consequence of anything said or done (…) to render the confession unreliable”, notwithstanding that the confession may be true, the confession is to be excluded. The burden of proof rests on the prosecution to prove “beyond a reasonable doubt” (i.e. the criminal standard) that it was not obtained in such a way. Oppression includes “torture, inhuman or degrading treatment and the use or threat of violence (whether or not amounting to torture)”, as well as other inappropriate interviewing practices. In practice this means that if a confession is challenged by the defence or by the court (of its own volition), the court must not allow the confession to be given in evidence unless the prosecution can prove that it was not obtained by “oppression”. This is usually done by calling the interviewing officer to give evidence that procedures were followed, there was no ill-treatment, and to produce the tape recording of the interview. 1 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, 10 April 2014, A/HRC/25/60, on the scope and objective of the exclusionary rule in judicial proceedings and in relation to acts by executive actors, paras. 33, 67. TOOL: Non-admission of evidence obtained by torture and ill-treatment 10/15