60 Tainted by Torture: Examining the Use of Torture Evidence | 2018 all’ approach for identifying and excluding ‘torture evidence’. Nonetheless, certain minimum standards, identified from international standards on fair trial rights, do need to be met. Currently, many countries fail to meet such standards and, in particular, place an unreasonable burden on the alleged torture victim to ‘establish’ that evidence was obtained by torture. We urge those working to advance compliance with the exclusionary rule to consider the legal procedure to be applied in relation to the identification and exclusion of ‘torture evidence’, taking account of applicable international standards on the right to a fair trial. In particular, domestic legal regimes should be reviewed to ensure compliance with international standards on the burden of proof for establishing whether evidence was obtained as a result of torture. 5. A lack of data on the use of exclusionary regimes precludes an assessment of how legal frameworks are operating in practice. However, it is clear that, in practice, preventing reliance on ‘torture evidence’ requires more than just good domestic laws. Other factors include: (a) access to trained professionals and an understanding of the broader institutional incentives at play in the justice system as a whole or in individual cases; and (b) practical barriers to the application of the exclusionary rule such as failures to protect torture victims, the inability to obtain evidence and the operation of incentives to plead guilty rather than challenging evidence in court. Concerns about reliance on ‘torture evidence’ will not be solved by changes to the law alone. We recommend approaches which address how the law is operating in practice. This should include the collection of statistical data on the application of exclusionary regimes as well as qualitative engagement with the stakeholders who are key to making the law work in practice. 6. In some countries, the main evidence on which convictions are founded is confessions. This creates a considerable risk of coercion, including torture. In response, some countries apply special legal protections in the context of confessions, including a requirement for corroborating evidence and/or the need to demonstrate that procedural safeguards have been complied with during police interviews. This approach is starting to gain traction at an international level as a protection against torture. Reducing reliance on confessions in criminal prosecutions has the potential to address a major driver of torture. We welcome the growing recognition that increasing respect for suspects’ procedural rights in the period following arrest is important to torture prevention. We recommend an increased focus on rightscompliant police investigations. 7. The exclusion of ‘torture evidence’ should operate as part of the wider anti-torture architecture under international law. This includes accountability (through criminal or disciplinary sanctions). However, in practice, where torture is identified in the course of proceedings and the related evidence is excluded, there is rarely an obligation on competent officials to initiate a criminal action against the perpetrators. In general, criminal investigations require a formal complaint to be made by the victim. The exclusionary rule is also just one of a wide range of remedies and reparations for victims that are mandated by international law. We recommend that states review the process for ensuring accountability where torture is identified in the course of proceedings and the related evidence is excluded: this should not rely on a complaint by the victim. Similarly, whilst the exclusionary rule should be recognised, in part, as a means of reparation, it is not a sufficient form of remedy or reparation on its own.