Invariably, in third-party torture cases, it is extremely difficult for an individual to substantiate even a prima facie case that evidence was obtained as a result of torture. A defendant will not normally know the circumstances under which the interviewing of another person has taken place, who has witnessed that process, whether torture has occurred, or even the identity of the third-party. Despite these difficulties, there have been several cases in European courts where the admissibility of evidence has been challenged on the grounds that it was obtained by the torture of a third party.101 In El Haski v Belgium, the ECtHR established that where evidence comes from a third party, and states cannot guarantee adequate investigation into allegations of torture, only a “real risk” that torture occurred is required in order for evidence to be excluded.102 The Committee against Torture has also advised against the use of torture-tainted evidence extracted from third parties, regardless of whether such evidence is used in domestic proceedings or in proceedings in a third state.103 Promising Practice 46. As outlined above, there are many reasons why the exclusionary rule fails to be properly implemented in practice. While the roles of criminal justice actors, like those of judges and prosecutors, are essential to the proper functioning of the exclusionary rule, the relevant procedures must also present a fair process for the exclusion of evidence. In common law jurisdictions, the procedure can be more straightforward, due to clearer standards for the reversing of the burden of proof and the requisite standard of proof. 47. In a Western European OSCE participating State for instance, legislation mandates that where a criminal defendant provides evidence that their confession was obtained by “oppression” or under any other circumstance that may make the confession unreliable, ”the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.”104 The statute provides that “oppression” includes “torture, given by the accused in a domestic court. 101 These cases arose in Europe as a result of intelligence exchanges through the so-called ‘war on terror’. See, for example, A & Others v Secretary of State for the Home Department (No 2) [2005] UKHL 71; El Haski v Belgium, App no. 649/08, (ECtHR, 25 September 2012); the Hanseatic Higher Regional Court re the case of Mr. El Motassadeq (Beschluss, 2 BJs 85/01 – 2 StE 4/02 – 5 – IV – 1/04 –), 14 June 2005. 102 El Haski v Belgium, App no. 649/08, (ECtHR, 25 September 2012), para. 85. 103 Ktiti v. Morocco, op. cit., note 86. 104 Police and Criminal Evidence Act 1984, Section 76(2), United Kingdom. 34