41 majority of detainees. Furthermore, many detention facilities prevent or severely restrict access to independent medical professionals; in-house medical professionals may feel less able to author reports with clear findings of torture, given employer loyalty or fear of repercussions. In Tunisia, the UN Committee Against Torture noted that this was an issue: ‘[P]ersons deprived of liberty cannot choose their doctors. It is concerned about reports of detainees being examined in the presence of police officers or prison staff and of some examinations being carried out by doctors from the Ministry of Justice, although it notes that responsibility in this area is now being transferred to the Ministry of Health’.215 IV.3.3 Delays and pre-trial detention A defendant’s decision about whether to challenge the admissibility of evidence will also depend on the likely impact this will have on the outcome of their case. Even leaving aside the risk of reprisals, it will not always follow that this will be in the defendant’s interests. For a defendant in detention (particularly if they are suffering torture or ill-treatment) a key factor will be the speed of release – how quickly can I get out of here? In a country in which suspects are held for lengthy periods of time pre-trial, the outcome of a criminal trial – even if it results in conviction – will often be release from prison because the sentence will already have been served. In this case, the decision about whether to challenge the admissibility of evidence may seem relatively academic (in those instances when challenges cannot be instituted in any earlier appearances before a judge to confirm the legality of detention). It may even prolong detention. For example, as discussed above, in Vietnam216 and Turkey217 a motion to exclude evidence, on the basis that it resulted from torture, initiates a separate investigative process during which the substantive trial is put on hold. A further practical challenge to the operation of exclusionary regimes is the increasing global reliance on systems which incentivise suspects to waive their right to a fair trial in exchange for a shorter sentence or reduced charges.218 By pleading guilty, a suspect will typically also waive their right to challenge the admissibility of evidence – in many legal systems the evidence becomes irrelevant as the state is no longer required to establish guilt. In effect, this means that the prohibition on reliance on ‘torture evidence’ is side-stepped, frustrating the underlying reasons for the exclusionary rule discussed above. MAHDI HASHI219 In a 2015 case before the federal district court in New York, the validity of a plea deal entered into by Mahdi Hashi was considered. Hashi had previously been stripped of his British citizenship, apprehended in Djibouti and tortured there in incommunicado detention for three months. He was then rendered without legal process to the US where he was held in solitary confinement for three years facing charges of material support to a terrorist organisation, which carried a potential sentence of 30 years to life in prison. He finally accepted a plea deal to a charge of conspiracy to provide material support for terrorism. There are a number of troubling aspects of this case that deserved deeper judicial scrutiny than was possible absent a trial. The procedural history raised serious questions, for example, about the allegations of US involvement in kidnap, torture and rendition, and the constitutionality of Hashi’s extended incommunicado solitary confinement pre-trial. Criminal trials and associated challenges to the admissibility of evidence provide a crucial forum through which torture and mistreatment is made public. The evidence of torture that is exposed can, as discussed below, also form the basis of collateral claims for compensation or prosecution or civil liability of abusers. Plea deals can be used to avoid this by ‘cleansing’ or ‘laundering’ cases that are too tainted by torture and other human rights abuses to take to trial.220 This issue was considered by the UN Human Rights Committee in Hicks v Australia.221 CASE STUDY To some extent, these practical challenges are addressed by regimes which require the prosecution to establish that evidence was not obtained by torture after a reasonable suspicion has been raised by the defendant (see section III.3 above). However, in practice, not all countries adopt this approach. IV.3.4 Avoiding trials – guilty pleas