44 OTHMAN (ABU QATADA) v. THE UNITED KINGDOM JUDGMENT that there was a real risk that the evidence had been obtained by torture, it should not admit the evidence. 2. R v. Mushtaq 138. In England and Wales, section 76(2) of the Police and Criminal Evidence Act 1984 provides: “If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained— (a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.” This test is primarily for the trial judge to determine, if necessary by holding a voire dire. In R v. Mushtaq [2005] 1 WLR 1513, the House of Lords held that the logic of section 76(2) required that, if a confession is admitted, a jury should be directed that if they considered that the confession was, or may have been, obtained by oppression or any other improper conduct they should disregard it. D. Canada 139. In India v. Singh 108 CCC (3d) 274, the British Columbia Supreme Court considered an extradition request where it was alleged that the prima facie case against the fugitive, Singh, was based on five confessions of co-conspirators, which had been obtained by torture. The court held that, for the purpose of determining whether the extradition could proceed because there was a prima facie case, a statement obtained by torture was inadmissible. However, the burden of proving that the statement was so obtained rested upon the fugitive who made that allegation. It was agreed that this allegation had to be proved on a balance of probabilities. The court found the allegation had not been proved to that standard for four of the statements but that it had for a fifth. 140. The approach taken in A and others (no 2) was followed by the Canadian Federal Court in Mahjoub v. Canada (Minister of Citizenship and Immigration). Mahjoub also concerned the issue of deportation with assurances and is summarised at paragraph 153 below.