33 defendant. The statute provides that oppression includes ‘torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture)’. While a finding of ‘oppression’ ‘almost inevitably’164 entails some impropriety on the part of the interrogator, such as an inappropriate display of hostility by the police during an interview,165 not all acts of impropriety will constitute ‘oppression’ – rather, it is a question of degree.166 If a confession is challenged by the defence or by the court (of its own volition) in the course of a ‘voir dire’,167 the court must not allow the confession to be given in evidence unless the prosecution proves that it is admissible.168 The defendant is not obliged to give evidence or call witnesses in support of their case.169 However, outside of the context of criminal trials, the common law would appear to require a different approach. In A and Others v Secretary of State for the Home Department (No 2),170 where the majority of judges held: ‘The [exclusionary] rule does not require it to be shown that the statement was not made under torture. It does not say that the statement must be excluded if there is a suspicion of torture and the suspicion has not been rebutted. Nor does it say that it must be excluded if there is a real risk that it was obtained by torture […] Is it established, by means of such diligent inquiries into the sources that it is practicable to carry out and on a balance of probabilities, that the information relied on by the Secretary of State was obtained under torture? If that is the position, Article 15 requires that the information must be left out of account’.171 This controversial approach was clearly influenced by the security context as illustrated by the court stating that ‘[t]oo often we have seen how the lives of innocent victims and their families are torn apart by terrorist outrages’.172 A number of the judges disagreed with the majority, highlighting: ‘This is a test which, in the real world, can never be satisfied. The foreign torturer does not boast of his trade. The security services [...] do not wish to imperil their relations with regimes where torture is practised. The special advocates have no means or resources to investigate. The detainee is in the dark. It is inconsistent with the most rudimentary notions of fairness to blindfold a man and then impose a standard which only the sighted could hope to meet. The result will be that, despite the universal abhorrence expressed for torture and its fruits, evidence procured by torture will be laid before SIAC because its source will not have been ‘established’’.173 Germany is a civil law country, and because of the way its legal system operates, the ‘burden of proof’ does not apply in the same way as it does common law systems like, for example, England and Wales. It is the duty of the prosecutor to put together a file of legally obtained evidence and, in so doing, the prosecutor would be required to conduct an official investigation where evidence may have been obtained by torture. The outcome of this investigation would determine whether the evidence should be included in the case file and, therefore, presented to the court. In practice, the defence lawyer may need to bring forward indications regarding the use of torture to urge the prosecutor, and subsequently the court, to conduct such an investigation. Under German law, the decision to admit evidence is seen as a procedural issue rather than one which goes to the question of the guilt or innocence of the accused. The benefit of the doubt rests with the defendant in questions relating to the determination of guilt but this does not apply to procedural issues. As a result, if there is doubt as to whether evidence was obtained as a result of torture, that evidence will not be excluded. This situation occurred in the El Motassadeq case (see next page for more detail), where evidence that was alleged to have been obtained by torture of third parties was considered admissible at trial because it could not be proven to the court that it had been obtained by torture.174 In the El Haski case, the European Court of Human Rights established that where evidence comes from third party states that cannot guarantee adequate investigation into allegations of torture, only a ‘real risk’ that torture occurred is required in order for evidence to be excluded,175 a standard of proof much lower than that which is employed by the German courts. The El Haski judgment came several years after the El Motassadeq case, but it highlights that the approach taken by the German courts was severely flawed given the broader principled arguments for exclusion of any evidence which may have been obtained as a result of torture. Furthermore, it is not possible to divorce procedural questions relating to the admissibility of key evidence with ultimate decision on guilt. As significant evidence in the El Motassadeq case, the admission of the evidence alleged to have been obtained by torture clearly had a major impact on the outcome of the trial, and therefore the fairness of the conviction.