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NEW video on the role of the legal profession in implementing the exclusionary rule

The International Bar Association’s Human Rights Institute (IBAHRI) calls for the exclusionary rule, which prohibits torture-tainted evidence from being admitted in any proceedings, to be strengthened in application and practice in criminal justice systems.

The exclusionary rule is enshrined in international law, standards and norms, including in Article 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which states: ‘Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.’ Despite this, a gap in national implementation remains and routine reliance on torture-tainted evidence persists in many countries around the world.

IBAHRI Co-Chair, and Immediate Past Secretary General of the Swedish Bar Association, Anne Ramberg Dr Jur hc, stated: ‘The inadmissibility of evidence obtained by torture is a crucial principle that reinforces the absolute prohibition of torture and acts as a form of torture prevention. Research shows that forced confessions are inherently unreliable and violate the right to a fair trial. It follows that relying on such evidence indirectly legitimises torture and therefore taints the justice system. Therefore, the IBAHRI calls on all States to stop admitting torture-tainted information and to bring a halt to the cycle of acceptance and demand. This is the responsibility of the entire legal profession including judges, public prosecutors and defence lawyers who all have vital roles to play in upholding the exclusionary rule and effectively being components in the fight against torture.’

In a recently held IBAHRI panel discussion, the role of the legal profession in implementing the exclusionary rule was the chief focus. The panel examined the role of judges, public prosecutors and defence lawyers in identifying, challenging and excluding torture-tainted evidence. Moderated by IBAHRI Director Baroness Helena Kennedy QC, the webinar brought together a distinguished panel of speakers, including (in alphabetical order):

• Gitau Mwangi, Program Officer, Redress, Independent Medico-Legal Unit, Kenya; and Expert Member, Working Group on Death Penalty, Extra-Judicial, Summary or Arbitrary Killings and Enforced Disappearances, African Commission on Human and People’s Rights;
• Professor Judge Egbert Myjer, a former judge of the European Court of Human Rights; Honorary Member, International Association of Prosecutors; and Commissioner, International Commission of Jurists;
• Ilvija Pūce, Member, United Nations Committee against Torture; and
• Patricia del Arenal Urueta, Clerk, Office of Justice Alfredo Gutiérrez Ortiz Mena, Supreme Court of Justice, Mexico.

From the discussion (with the point on the time counter bracketed):

Speaking on the role of defence lawyers and the Kenyan context, Gitau Mwangi noted: ‘Defence lawyers should scrutinise the lawfulness of police investigations and when [clients’] rights have been violated we can either have a trial within a trial or a constitutional petition to challenge the evidence collection.’ (24:12)

Providing an overview of the constitutional doctrine developed by the Mexican Supreme Court of Justice on matters of torture and the exclusionary rule, Patricia del Arenal Urueta said: ‘Given the fact that the Court started its interpretative activities rather late compared to other constitutional courts, it is expected that as years go by justices will succeed in shaping a nuanced but solid jurisprudence and hopefully one that fully embraces international human rights law.’ (45:11)

Highlighting the role of prosecutors in implementing the exclusionary rule, Professor Judge Egbert Myjer said: ‘The prosecution should conform to international human rights law, to human rights standards and norms in order to uphold the reliability…and credibility of both the profession and the government as a whole’. (48:52)

In closing the panel discussion, Baroness Kennedy QC said: ‘If we don’t hold on to the idea that this is an absolute protection against torture and that it speaks to how we protect humanity…if we don’t have the most rigorous of standards, then we are likely to fall into discretionary use of [torture-tainted evidence].’ (1:14:50)

IBAHRI Co-Chair Mark Stephens CBE commented: ‘We applaud the lawyers, prosecutors and jurists worldwide who are working tirelessly to uphold human rights, break the cycle of impunity and secure justice for victims. The IBAHRI calls on States to uphold international law on the prohibition and prevention of torture and ill-treatment and to ensure that perpetrators are prosecuted and punished. This includes ensuring that judges and prosecutors have the necessary powers to exclude torture-tainted evidence and thus guarantee the independence of the legal profession and fair trial rights.’

ENDS