13 the absolute prohibition on torture22 and is reflected in Article 15 of the UN Convention Against Torture: ‘Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made’. The prohibition on the use of such statements is based upon a number of inter-related rationales, including: i) To safeguard the fairness of a trial.23 Any statement made under torture is ipso facto24 involuntary and inherently unreliable: ‘Any confession made as a result of physical violence or other oppressive or inhuman treatment is not voluntary. The accused makes it, as we have seen, merely to avoid pain. He is not a free agent when he makes it’.25 It also violates the presumption of innocence which requires the state to prove guilt, and protects a suspect’s right to remain silent and not to be compelled to incriminate him or herself.26 In consequence, human rights courts have regularly determined that reliance upon statements procured by torture in proceedings violates the right to a fair trial. In Magee v UK,27 for example, the European Court of Human Rights held that the admission in evidence of statements made by a person detained under the Prevention of Terrorism Act 1984 at a police station in austere detention conditions which were ‘intended to be psychologically coercive’ and without access to a lawyer breached Article 6(1) (Right to a Fair Trial) of the European Convention. ii) iii) To safeguard the torture victim’s rights in the legal proceedings. Somewhat connected to the first rationale, which focuses on the unreliability of the evidence as the reason to exclude it in particular proceedings, this rationale focuses on the torture victim’s rights and is associated with the need to provide the victim with a remedy (in this case exclusion of the evidence) for the violation of his or her right not to be subjected to torture.28 This is discussed in further detail in Chapter VII. To use evidence procured by torture is an outrage to basic human values and makes the court complicit by indirectly legitimising the torture. Thus, the admission of such evidence taints the justice process and is an offence to the rule of law. Such evidence must be excluded in order to protect the integrity of the justice system. As the European Court of Human Rights recognised in the Othman case: ‘No legal system based upon the rule of law can countenance the admission of evidence – however reliable – which has been obtained by such a barbaric practice as torture. The trial process is a cornerstone of the rule of law. ‘Torture evidence’ damages irreparably that process; it substitutes force for the rule of law and taints the reputation of any court that admits it. ‘Torture evidence’ is excluded to protect the integrity of the trial process and, ultimately, the rule of law itself’.29 iv) As a form of deterrence and prevention serving the public policy objective of disincentivising officials from resorting to torture and prohibited ill-treatment in the conduct of investigations.30 As the former UN Special Rapporteur on Torture, Juan Mendez, has noted, ‘[a] judicial practice that rewards torture by not depriving it of all legal effects in fact encourages the torturer’.31 Special Rapporteur Kooijmans wrote similarly much earlier, in 1992: ‘Far too often the Special Rapporteur receives information […] that courts admitted and accepted statements and confessions in spite of the fact that during trial the suspect claimed that these had been obtained under torture […] It is no exception that this chain of situations, which are all extremely conducive to the practice of torture, is in clear violation of the prevalent rules. Laxity and inertia on the part of the highest executive authorities and of the judiciary in many cases are responsible for the flourishing of torture. […] It is within their [the judiciary’s] competence to order the release of detainees who have been held under conditions which are in flagrant violation of the rules; it is within their competence to refuse evidence which is not freely given; it is within their power to make torture unrewarding and therefore unattractive and they should use that power’.32 One should not sanction the acts of torturers around the world by giving their unlawful conduct legitimacy through the courts. Furthermore, to deter is not only a moral imperative to forestall the use of torture, it is also a legal imperative stemming from the clear