32 Tainted by Torture: Examining the Use of Torture Evidence | 2018 provided or if the person is arbitrarily or secretly detained, a statement should be excluded irrespective of direct evidence or knowledge of physical abuse. The use of evidence obtained otherwise in breach of human rights or domestic law generally renders the trial as unfair’.154 In the case of El Haski v Belgium (which concerned the admissibility in a Belgian court of evidence allegedly obtained as a result of third parties in Morocco) the European Court of Human Rights took this type of approach: ‘Where the judicial system of the third State in question does not offer meaningful guarantees of an independent, impartial and serious examination of allegations of torture or inhuman and degrading treatment, it will be necessary and sufficient for the complainant, if the exclusionary rule is to be invoked on the basis of Article 6 § 1 of the Convention, to show that there is a ‘real risk’ that the impugned statement was thus obtained. It would be unfair to impose any higher burden of proof on him. The domestic court may not then admit the impugned evidence without having first examined the defendant’s arguments concerning it and without being satisfied that, notwithstanding those arguments, no such risk obtains. This is inherent in a court’s responsibility to ensure that those appearing before it are guaranteed a fair hearing, and in particular to verify that the fairness of the proceedings is not undermined by the conditions in which the evidence on which it relies has been obtained’.155 The Inter-American Court has also ruled that, as the burden of proof is on the state, the accused need not fully prove the allegation that the evidence was obtained as a result of torture or other illtreatment.156 A number of the countries examined follow this model, requiring only a low burden to be met in order to bring the issue before the court. This is expressed in a variety of ways: ‘prima facie assertion’, ‘reasonable grounds’, ‘a suspicion has been raised’ or a ‘credible claim’ that evidence has been obtained by torture. For example: i) In Australian Federal courts, in relation to confessions only, ‘[t]here must be some evidence that indicates through legitimate reasoning that there is a reasonable possibility an admission or its making were influenced by prosecuted conduct’.157 This ‘legitimate reasoning’ could be the lack of recorded defendant interviews, or the mental health status of the defendant.158 ii) In Spain, according to recent case law, the relevant party must provide at least preliminary evidence which generates sufficient doubts as to whether the evidence was obtained illegally.159 A number of the countries examined then shift the substantive burden to the state to prove that the evidence was not obtained as a result of torture, for example: i) In the United States, once torture is alleged, the state body that is seeking to introduce the evidence into the proceedings bears the burden of showing that the evidence was not obtained by torture. The burden of proof is generally a preponderance of evidence test160 though some states require that the state meets a stricter standard (i.e. ‘clear and convincing’ or ‘beyond a reasonable doubt’).161 ii) In China, the prosecution bears the burden of proving that evidence on which it seeks to rely has been obtained legally: if the prosecution does not provide evidence to confirm the legality of the defendant’s pre-trial confession, then it may not constitute the basis for a conviction.162 The court must exclude the evidence if it cannot eliminate the possibility that it was obtained illegally. However, not all of the countries examined have a process for shifting the burden of proof to the state. Several countries maintain the full burden on the defendant to prove that evidence was obtained by torture. For example, in France it is for the party alleging the irregularity and requesting the annulment of evidence to demonstrate that a given piece of evidence: (i) violates the law or a substantial formality; and (ii) hurts the interests of the party concerned.163 In England and Wales, in the context of criminal trials, the admissibility of confession evidence is governed by legislation. Section 76 of the Police and Criminal Evidence Act 1984 provides that where a criminal defendant provides some evidence that their confession was obtained by ‘oppression’, the burden of proof shifts to the prosecution to prove to the criminal standard that it was not obtained in such a way, if they wish to prove the admission against that