51 Chapter VI: Prosecutions and disciplinary sanctions stemming from revelations about ‘torture evidence’ The core focus of our research was on the measures taken by states to exclude ‘torture evidence’ in criminal proceedings, but we also wanted to understand what states did once cases of torture had been brought to their attention. In particular, did this lead to criminal proceedings against the torturers? Torture is recognised as a crime giving rise to individual criminal responsibility.272 If the police engage in criminal behaviour in order to obtain evidence then they should be held criminally liable for such conduct.273 A policeman who tortures a defendant or coerces a confession may face charges including torture, assault, coercion, threatening behaviour or abuse of public office. An official who breaches procedural rules may face disciplinary sanctions. VI.1 The criminalisation of torture The UN Convention Against Torture requires states to criminalise torture – specifically, to set it out as a distinct criminal offence.274 This is to underline society’s abhorrence for the crime. Also, without a separate offence of torture, it is difficult to ensure compliance with the obligation to investigate and prosecute instances of torture. Furthermore, the special procedural rules which apply to torture prosecutions under international law, such as the inapplicability of amnesties, will be more difficult to apply. Despite this, not all states have criminalised torture. For instance, in Thailand, torture is not a specific offence in the criminal code, though the prohibition is reflected in the 2017 Constitution.275 Where the exclusionary rules relate to evidence obtained as a result of illegal actions, the absence of a specific crime of torture makes it harder for states to apply special (absolute) exclusionary regimes to ‘torture evidence’. In Western Australia, for example, there is no legislation explicitly criminalising torture. Instead, the prohibition against the use of torture is found in the general provisions of the Western Australia Criminal Code in offences such as assault and other related offences against the person.276 VI.2 The obligation to investigate When there is information that suggests that torture may have taken place, there is an obligation for the competent authorities to investigate with a view to establishing whether the offence indeed took place and, where sufficient evidence exists, to prosecute and punish the persons responsible. This obligation derives from the absolute prohibition on torture set out in the UN Convention Against Torture and a host of other human rights treaties,277 and is incorporated into numerous national constitutions. When a person alleges that torture has been used in order to obtain a confession, this allegation should, in and of itself, result in the competent authorities initiating a criminal investigation into the torture allegation. There should be no need for the person to report the matter to the police as a fresh crime. This is because the obligation to investigate torture allegations is not contingent on the victim lodging a formal complaint; the competent authorities are required to proceed with an investigation regardless of how they learnt of the allegation.278 In the Demir and others case, for example, the Turkish Constitutional court held: ‘[E]ven if there was no formal complaint of torture, if there are signs that demonstrate that the person was subject to ill-treatment or torture, there has to be an investigation. In this context an investigation has to take place promptly and independently’.279 Often, the revelation of torture will arise at the pretrial or trial stage when counsel for a defendant seeks to have evidence excluded. It may also be revealed during an initial detention hearing before a judge or