48 Tainted by Torture: Examining the Use of Torture Evidence | 2018 V.2.4 Procedural safeguards during the investigation In recognition of the dangers that confessions given by a suspect may have been coerced, some countries require the court to be satisfied that certain procedural safeguards have been met before admitting confession evidence. In England and Wales for example, if there is a suggestion that a confession may have been obtained as a result of oppression, the prosecution must prove that the confession evidence was not obtained in this way by showing that procedural safeguards against oppression were complied with. This includes, for example, giving the accused appropriate cautions, providing an appropriate adult where required and compliance with Codes of Practice in relation to the detention of the accused.251 In the countries studied, there are numerous and varied examples of confessions being inadmissible as evidence where there has been a violation of particular procedural safeguards that protect against oppression: i) In Western Australia, a suspect’s confession to the police or the CCC in the context of a serious offence is not admissible unless it has been recorded.252 V.3 ii) Brazil’s Supreme Court has concluded that a confession is not admissible where suspects are not informed of their rights, including the right to remain silent.253 iii) In Germany, violations of procedural rights accorded to suspects can lead to a confession being deemed to be inadmissible, such as a violation of the obligation to notify a suspect of their right to remain silent.254 iv) In Turkey, the Constitutional Court requires a lawyer to be present during the police interrogation in order for the confession to be used.255 v) In Mexico, a confession is only valid if provided in the presence of a lawyer.256 vi) In some United States jurisdictions, confessions which are made following procedural violations (designed in part to protect against torture and oppression), including the right to be brought promptly before a judge257 and the failure to provide information on the right to remain silent and the right to a lawyer,258 may not be admissible. Emerging international standards: a universal protocol for interviews The UN Committee Against Torture has recommended changes to eliminate incentives to obtain confessions259 and the UN Human Rights Committee and the European Committee for the Prevention of Torture have called for states to reduce reliance on confession evidence by developing other investigative techniques.260 In his 2016 interim report to the General Assembly, Juan Mendez, the former UN Special Rapporteur on Torture, further developed the link between torture and confessions, advocating for the development of a new universal protocol for non-coercive interviews: ‘The protocol must address the need to change the culture of tolerance and impunity for coerced confessions in such cases. National legislation must accept confessions only when made in the presence of competent and independent counsel (and support persons when appropriate) and confirmed before an independent judge (see A/HRC/13/39/Add.5 and A/HRC/4/33/Add.3). Courts should never admit extrajudicial confessions that are uncorroborated by other evidence or that have been recanted (see A/HRC/25/60)’.261 This is an important initiative that, if adopted and implemented, may remove a key incentive for torture. Several aspects of what is envisioned for the protocol help to enforce the exclusionary rule and are set out immediately below: i) prohibit any form of coercion during the questioning of suspects (not only torture and other cruel, inhuman or degrading treatment); ii) promote alternative information-gathering models focused on eliciting the truth (as opposed to a focus on eliciting confessions);