10 Tainted by Torture: Examining the Use of Torture Evidence | 2018 Introduction Imagine a young man is detained in a police cell. He has been there for several weeks, has had no access to a lawyer and his family doesn’t know where he is. The police are repeatedly administering electric shocks to the most sensitive parts of his body; they are beating him on the soles of his feet; and they are threatening that they will rape his wife if he doesn’t comply. He is being denied proper food and his cell is not ventilated, making it difficult for him to breathe. Basic dignities such as the ability to use toilet facilities, to wash and to interact with other detainees are curtailed. The young man is progressively worn down out of sheer mental and physical exhaustion. He can hardly think. He just wants the suffering to stop. He tells the police officers what he thinks they want to hear. He admits to crimes of which he has no knowledge. His statement is then written up and he is forced to sign it. This is a typical example of torture, but it does not come close to covering the variety of contexts in which torture can occur, the persons who resort to it, the supposed purposes for using it or indeed the consequences of its use. Nevertheless, torture is often used by police, intelligence services, the military and others as a short-cut in criminal investigations, as a means of exerting control over detainees; to gather ‘intelligence’; to solicit leads or other information; and to obtain confessions. In some countries this form of cruelty and intimidation is routine and statesanctioned. In others, it is unseen and unsanctioned but nevertheless is still regularly resorted to behind closed doors. This report focuses on the rule prohibiting the use of information gathered from torture practices in legal proceedings. National constitutions, criminal procedural codes, regional and international treaties and their interpretive texts have progressively addressed the question of ‘torture evidence’, as have domestic and international jurisprudence. The general position is that ‘torture evidence’ is incapable of being admitted in legal proceedings, except to prove that the torture happened. This is clear and well known. Sadly, however, in the words of the former UN Special Rapporteur on Torture, Juan Mendez: ‘this is a norm that is mostly observed in the breach. In practice, judges and prosecutors ignore signs that a person has been mistreated and even ignore formal complaints to that effect’.1 The aim of this report is to understand better the disconnect between what is, on its face, a clear international standard and the reality on the ground. Whilst much is known about the general prohibition on the use of ‘torture evidence’, the procedural aspects of the prohibition are not well defined and the practical implementation of the prohibition in countries around the world is opaque. This report draws on a comparative survey of the law and practice of 17 countries, namely Australia,2 Brazil, China, England and Wales, France, Germany, Indonesia, Japan, Kenya, Mexico, Spain, South Africa, Thailand, Tunisia, Turkey, the United States of America3 and Vietnam. We use this data to examine different ways of implementing the prohibition; and to identify challenges which arise in the course of applying the prohibition and any consequential gaps in the protections against the use of ‘torture evidence’. The lack of detail in international standards in this area and fundamental differences in domestic legal systems result in a myriad of approaches to implementing the prohibition. We do not seek to assess the strengths or weaknesses of the law in any particular country. That would go beyond the scope of this study. Instead we examine how different countries approach key components of the prohibition on the admissibility of ‘torture evidence’ including whether: (i) the prohibition is absolute; (ii) the prohibition extends to other forms of inhuman or degrading treatment or punishment; (iii) the prohibition covers evidence obtained from the torture of a third party; (iv) the prohibition covers derivative evidence/fruits of the poisonous tree; and (v) there are effective legal procedures in place to identify and exclude ‘torture evidence’. Recognising that the perfect legal framework does not automatically result in perfect compliance with international standards, we also consider broader