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Preventing torture: moving away from confession-based criminal justice

admin - June 4, 2018 - The disappearing trial, Torture, UN Convention Against Torture

In May 2018, Fair Trials’ Senior Legal and Policy Officer, Rebecca Shaeffer, attended the inaugural expert meeting of the Steering Committee for the development of a set of Guidelines on Non-Coercive Interviewing and Procedural Safeguards in Rio de Janeiro.


It is well-known that torture is most likely to occur during the initial stages after arrest. This is usually when police are trying to gather information and evidence that proves the guilt of a suspect, and often occurs before suspects have had the opportunity to exercise key procedural rights like accessing a lawyer. Unfortunately, in many jurisdictions, confessions even in these conditions are relied on as a conclusive and easy-to-obtain form of proof. Reliance on confession-based investigation too often incentivises coercive methods by investigative authorities, including torture. Former Special Rapporteur on Torture, Juan E. Méndez, has reported that in some countries there was a ‘perception that torture, ill-treatment and coercion are the easiest and swiftest ways to elicit confessions or other information’. In our recently published report, Fair Trials and REDRESS found that confessions obtained by torture are still frequently admitted in criminal proceedings, and that conviction using confession-based evidence still acts as a key incentive for police to use torture despite widespread recognition that these methods produce unreliable evidence, and laws in many countries that aim to prohibit the use of torture evidence.  

In recognition of the risk of coercion and torture that too often follows on from the pervasive reliance on confessions in criminal investigations, in 2016, then-U.N. Special Rapporteur on Torture Juan Méndez recommended the development of a universal protocol on non-coercive interviewing methods and procedural safeguards to prevent torture in police custody. This  idea is being  taken forward by the Anti-Torture Initiative (ATI), Association for the Prevention of Torture (APT) and Norwegian Centre for Human Rights (NCHR), who have set up a Steering Committee made up of torture prevention experts for the purposes of drafting a set of Guidelines on Non-Coercive Interviewing and Procedural Safeguards. The Steering Committee met for the first time from May 18 to 19 in Rio de Janeiro, and is made up of 15 experts and practitioners in the fields of criminal justice, law enforcement, psychology, human rights and torture prevention.

Fair Trials Senior Legal and Policy Officer based in Washington DC, Rebecca Shaeffer, was invited to attend the meeting as a Steering Committee member. She said:

“Developing these guidelines is essential to upholding the universal prohibition on torture. At Fair Trials, we have long been campaigning for better procedural rights to protect defendants in custody from torture and mistreatment. Fair Trials’ recent work has demonstrated the limits of trial-based remedies for torture. For example, procedural rules that limit the impact of torture-tainted evidence are often ineffective in practice, and the growth of plea bargaining and other alternatives to trial mean that many cases never even reach the trial stage where investigative methods are subject to scrutiny. Where there is no trial because defendants are coerced into signing guilty pleas, there is no forum to challenge the evidence, and no possibility of airing mistreatment in court that acts as a key disincentive to dissuade police officers from using torture and mistreatment”.

In 2017, Fair Trials published a major research report into trial waiver systems, The Disappearing Trial, which found that in extreme cases, guilty pleas were used to ‘launder’ cases that had been tainted by torture, ensuring that authorities could gain a conviction without proper judicial scrutiny of the legality of the evidence. The report called for better procedural safeguards for defendants that recognise that trial waiver systems also waive some of the key safeguards of a trial.

Furthermore, Fair Trials’ research shows that confession-based justice systems, including those that predominantly rely on guilty pleas, can contribute to an erosion in the quality of police investigation. Where a police officer can obtain a conviction based on a confession alone, there is little incentive to seek further evidence and inquire into the full facts of a case. As well as being an affront to human dignity, confessions obtained by torture are notoriously unreliable.  Moving from a confession-based investigation system to an inquiry-based one will not only strengthen the rights of suspects and witnesses, but will also better ensure that justice is served and public trust maintained. Guidelines on non-coercive interviewing and procedural safeguards will empower justice actors all over the world with international best practice in relation to investigative interviewing, resulting in better protection of people exposed to the risk of torture and coercion, and improving the fairness of criminal justice systems.

The process of developing the guidelines is expected to be complete by 2020.

For more information on the use of confessions obtained by torture, read our new report Tainted by Torture: Examining the Use of Torture Evidence.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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