A/HRC/25/60 called the “fruit of the poisonous tree” doctrine. There is no doubt that this includes real evidence obtained as a result of ill-treatment but falling short of torture.16 30. The admission of evidence, including real evidence obtained through a violation of the absolute prohibition of torture and other ill-treatment in any proceedings, constitutes an incentive for law enforcement officers to use investigative methods that breach those absolute prohibitions. It indirectly legitimizes such conduct and objectively dilutes the absolute nature of the prohibition.17 The exclusionary rule is not limited to criminal proceedings but extends to military commissions, immigration boards and other administrative or civil proceedings.18 Moreover, the use of the phrase “any proceedings” suggests that a broader range of processes is intended to be covered; essentially, any formal decision-making by State officials based on any type of information.19 2. Burden of proof 31. It is of great concern that, in practice, the burden of proof on the admissibility of material obtained by torture or other ill-treatment in courts, seems to lie with the defendant rather than with the State, creating a real risk that such evidence is admitted in court because the individual is unable to prove that it was obtained under torture. The Special Rapporteur finds that the central question is the interpretation of the word “established” in article 15 of the Convention. In this context, it is necessary to have due regard for the special difficulties in proving allegations of torture, which is often practised in secret by experienced interrogators who are skilled at ensuring that no visible signs are left on the victim. In addition, all too frequently those who are charged with ensuring that torture or other ill-treatment does not occur are complicit in its concealment. 32. In their judgment on the case of A and others v. Secretary of State for the Home Department, a majority of the House of Lords agreed that evidence should be excluded from judicial proceedings if it is established, by means of diligent inquiries into the sources and on a balance of probabilities, that the evidence invoked was in fact obtained by torture. However, three Law Lords, in a minority opinion, strongly rejected the test applied for the burden of proof preferred by the majority, arguing that it placed a burden on the appellants that they can seldom discharge. They concluded that “it is inconsistent with the most rudimentary notions of fairness to blindfold a man and then impose a standard which only the sighted could hope to meet”,20 thereby effectively denying detainees the standard of fairness and undermining the effectiveness of the Convention. 33. Indeed, this test in effect places the burden of proof on the appellant to put forward evidence to satisfy the court that it is more likely than not was obtained under torture or other ill-treatment. The Special Rapporteur has held that the applicant is only required to demonstrate that his or her allegations are well founded, thus that there are plausible reasons to believe that there is a real risk of torture or ill-treatment, and the burden of proof should shift to the prosecution and the courts. The Committee against Torture has also consistently ruled that the burden of proof rests with the State, stating that the general nature of [article 15] derives from the absolute nature of the prohibition of torture and therefore implies an obligation for each State party to ascertain whether or not statements 16 17 18 19 20 8 Human Rights Committee, general comment No. 32, para. 6; see also African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, section N, para. 6 (d) (i). Malcolm D. Evans, “‘All the perfumes of Arabia’: the House of Lords and ‘foreign torture evidence’”, Leiden Journal of Law vol. 19, No. 4 (December 2006). See e.g. G.K. v. Switzerland, Committee against Torture, communication No. 210/2002, para. 6.10. See “Rotten fruit: State solicitation, acceptance and the use of information obtained through torture by another State”, p. 358. A and others v. Secretary of State for the Home Department, United Kingdom, House of Lords 71, judgement of 8 December 2005, para. 59 and see also A/61/259, paras. 57–65.