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Investigating crime; and

Investigating crime; and ensuring the integrity of the criminal process Page 89 attached considerable weight to the fact that, were the admission of evidence to have given rise to substantive unfairness, the national courts would have had discretion to exclude it. 262 ■ In Allan v the United Kingdom, the applicant complained that he had been convicted on the basis both of evidence obtained from audio and video bugging devices which had been placed in a police cell and in the visiting area of a police station, and also upon the basis of the testimony of a police informant who had been placed in his cell for the sole purpose of eliciting information about the alleged crime. Relying on the principles set out in Khan, the Court held that the use of the evidence obtained by video and audio recordings did not conflict with the requirements of fairness guaranteed by Article 6: the statements made by the applicant could not be said to have been involuntary, and the applicant had been accorded at each stage of the proceedings the opportunity to challenge the reliability of the evidence. On the other hand, the use of the evidence obtained from the informant who had been placed in the prison cell ‘for the specific purpose of eliciting from the applicant information implicating him in the offences of which he was suspected’ was not compatible with the right to a fair trial. Unlike in Khan, the admissions allegedly made to the informant had not been ‘spontaneous and unprompted statements volunteered by the applicant, but were induced by persistent questioning’ of the informant. 263 On the other hand, if the evidence has been obtained through ill-treatment (that is, in violation of Article 3) its subsequent use in a trial will generally be deemed to violate the right to a fair trial under Article 6. The use of ill-treatment by police officers in order to question a suspect with a view to obtaining a confession thus negates the use of ill-treatment as a means of interrogation. Further, as discussed in chapter 2, ill-treatment by State authorities inflicted for a particular purpose, such as to extract a confession or information, is treated as an aggravated violation of Article 3. 264 In short, ‘the use of such evidence, secured as a result of a violation of one of the core and absolute rights guaranteed by the Convention, always raises serious issues as to the fairness of the proceedings’. 265 The importance of Article 3 as ‘one of the most fundamental values of democratic societies’ is such that ‘even in the most difficult circumstances, such as the fight against terrorism and organised 262 Khan v the United Kingdom, judgment of 12 May 2000 at paragraphs 36-40. 263 Allan v the United Kingdom, judgment of 5 November 202 at paragraphs 46-48 and 52-53. 264 See p. 36 above. 265 Gäfgen v Germany, judgment of 1 June 2010 at paragraph 165.

The European Convention on Human Rights and Policing Page 90 crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim’s conduct’. 266 Domestic determination that a confession has been given voluntarily rather than under compulsion is not conclusive. ■ In Harutyunyan v Armenia, the applicant and two witnesses had been forced to make statements as a result of torture and intimidation. In finding that there had been a violation of Article 6, the Court observed that ‘incriminating evidence – whether in the form of a confession or real evidence – obtained as a result of acts of violence or brutality or other forms of treatment which can be characterised as torture should never be relied on as proof of the victim’s guilt, irrespective of its probative value. Any other conclusion would only serve to legitimate indirectly the sort of morally reprehensible conduct which the authors of Article 3 of the Convention sought to proscribe or, in other words, to ‘afford brutality the cloak of law’’. 267 ■ In Magee v the United Kingdom, the applicant had been held incommunicado in a Northern Ireland holding centre and interviewed for extended periods on five occasions by police officers operating in relays before he confessed his part in the planning of a terrorist attack. His initial request for access to a solicitor had been refused. He complained that he had been kept in virtual solitary confinement in a coercive environment and prevailed upon to incriminate himself. The domestic court had found that the applicant had not been ill-treated and that the confession had been voluntary, and the incriminating statements had formed the basis of the prosecution case against him. The Strasbourg Court concluded that denial of access to a lawyer for over 48 hours and in a situation where the rights of the defence had been irretrievably prejudiced was incompatible with the rights of the accused under paragraphs (1) and (3)(c) of Article 6. For the Court, ‘the austerity of the conditions of his detention and his exclusion from outside contact were intended to be psychologically coercive and conducive to breaking down any resolve he may have manifested at the beginning of his detention to remain silent’. In such circumstances, the applicant ‘as a matter of procedural fairness, should have been given access to a solicitor at the initial stages of the interrogation 266 Jalloh v Germany, judgment of 11 July 2006 at paragraph 99 (the administration of emetics to retrieve evidence, which could have been retrieved using less intrusive methods, subjected the applicant to a grave interference with his physical and mental integrity against his will and thereby violated both Art 3 and Art 6). 267 Harutyunyan v Armenia, judgment of 28 June 2007 at paragraph 63; the final quotation comes from the US Supreme Court judgment in Rochin v California (342 US 165 (1952)).