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Exclude torture evidence, prevent torture – Roundtable meeting calls for better implementation of the exclusionary rule

admin - November 22, 2018 - Torture

In November, Fair Trials and REDRESS convened an expert roundtable meeting in Geneva to highlight the crucial role of the exclusionary rule in the fight to uphold the universal prohibition on torture. The use of evidence obtained by torture is still widespread in criminal trials all around the world – a fact that the ‘Tainted by Torture’ report by Fair Trials and REDRESS revealed earlier this year. By exploring some of the serious flaws in domestic and international law, the impactful research shows how the international prohibition on torture evidence often fails to be implemented in reality.

At the roundtable meeting, Fair Trials and REDRESS brought together leading anti-torture NGOs and experts to discuss the findings of the ‘Tainted by Torture’ report. All those present at the meeting voiced their support for the report and welcomed its findings. Thanks to the research done by Allen & Overy offices, the report is unique in that it was able to draw on not just international and regional law and cases, but also domestic practice, jurisprudence and cases.

The report shows that there is a clear need for further work and international guidance on the exclusionary rule, as it is often an area of torture prevention that is not focussed on by itself, but usually forms part of broader criminal justice reform and anti-torture work.

Two key problems were identified at the roundtable meeting: First, some countries do not even acknowledge that torture is an issue in their jurisdiction. Work is clearly needed to both legislate against torture and torture evidence, as well as provide training to ensure that criminal justice actors are able to spot the warning signs of torture and prevent torture through strengthening due process rights. Secondly in other countries where there is an exclusionary rule and clear prohibition on torture –there is still a need for clarification on more complex issues within the exclusionary rule, such as the use of torture evidence outside of criminal justice systems (in administrative, counter terror or immigration proceedings), the legal questions around derivative evidence, and the guidance on the procedural process for excluding evidence obtained by torture.

In order to tackle these issues, Fair Trials and REDRESS are working with leading anti-torture NGOs to identify how to collaborate on a dual approach to torture prevention, including better implementation of the exclusionary rule at the trial stage and, equally as important, the prevention of torture during the early stages of detention- when people are most at risk.

Procedural safeguards during the early stages of arrest continue to be one of the most effective and necessary areas of torture prevention. Fair Trials is currently on the Steering Committee to develop a Universal Protocol for Investigative Interviewing and Associated Safeguards, an initiative started by the Former UN Special Rapporteur on Torture, Juan Mendez, to tackle the use of torture at this crucial stage. The Convention Against Torture Initiative (CTI) is also developing a series of ‘Implementation Tools’ on torture prevention – practical tools which demonstrate best practice and key safeguards that States can implement to reduce the risk of torture. Following the publication of the Tainted by Torture report, REDRESS is currently using the findings of the report to develop an implementation tool on the exclusionary rule for the CTI toolkit. 

The work continues for prohibiting torture, not only in theory, but eradicating it in practice as well. 

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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