HOUSE OF LORDS
 UKHL 25
on appeal from:  EWCA Crim 1943
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Mushtaq (Appellant) (On Appeal from the Court of Appeal (Criminal Division))
THURSDAY 21 APRIL 2005
The Appellate Committee comprised:
Lord Phillips of Worth Matravers
Lord Rodger of Earlsferry
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. Mushtaq (Appellant) (On Appeal from the Court of Appeal (Criminal Division))
 UKHL 25
1. I have read the opinion of my noble and learned friend Lord Rodger of Earlsferry. I am in complete agreement with it. I would also make the order which Lord Rodger proposes.
2. The facts of this case and the course of the appellant's trial have been fully set out in the opinion of my noble and learned friend Lord Rodger of Earlsferry and I gratefully adopt his account. The procedure adopted at the trial whereby the judge conducted a voir dire to decide whether the confession was admissible before it was put in evidence before the jury and the police officers were subsequently cross-examined before the jury when allegations of oppressive conduct were put to them, was described and approved in 1972 in paragraph 67 of the Eleventh Report of the Criminal Law Revision Committee (Cmnd 4991):
"The fact that the judge has decided at the trial within the trial that the confession is admissible will not prevent the defence from cross-examining the witnesses for the prosecution, or themselves giving evidence, at the trial proper about the way in which the confession was obtained with the object of convincing the jury that they should pay no attention to it. Even if the same evidence is given as that given at the trial within the trial, this will not prevent the jury from taking a different view from that which the judge took at the trial within the trial - even on the question, for example, whether there was any threat or inducement. This is in accordance with the present law. It would be wrong in our opinion to make any provision designed to require the jury to accept the judge's finding that a confession was not obtained in the ways mentioned, as this would be to usurp their function of deciding what weight to give to the confession. But the relevance of the issue for the jury will be only as to weight; and they will be under no obligation to disregard a confession, believed by them to be true, if it should so happen that (differing from the judge) they think that the test for admissibility was not satisfied. We have no doubt that the purpose for which the jury should consider the way in which a confession was obtained should be only that of deciding what weight to give to it. This is the present law and it will remain the law under [clause 2 of the Draft Criminal Evidence Bill annexed to the Report]."
3. The law is clear that where a judge has ruled on a voir dire that a confession is admissible the jury is fully entitled to consider all the circumstances surrounding the making of the confession to decide whether they should place any weight on it, and it is the duty of the trial judge to make this plain to them. In R v Murray  1KB 391 the trial judge ruled on a voir dire that the confession was admissible and later in the trial refused to allow counsel for the prisoner to cross-examine the police witnesses again in the presence of the jury as to the manner in which the confession had been obtained, and in his summing up he told the jury that they must accept from him that the confession was a voluntary one obtained from the prisoner without duress, bribe or threat. On appeal the Court of Criminal Appeal quashed the conviction and Lord Goddard CJ stated at page 392:
"The recorder was wrong in the course which he took. It was quite right for him to hear evidence in the absence of the jury and to decide on the admissibility of the confession; and, since he could find nothing in the evidence to cause him to think that the confession had been improperly obtained, to admit it. But its weight and value were matters for the jury, and in considering such matters they were entitled to take into account the opinion which they had formed on the way in which it had been obtained. [Counsel for the defence] was perfectly entitled to cross-examine the police again in the presence of the jury as to the circumstances in which the confession was obtained, and to try again to show that it had been obtained by means of a promise or favour. If he could have persuaded the jury of that, he was entitled to say to them: 'You ought to disregard the confession because its weight is a matter for you'
It has always, as far as this court is aware, been the right of counsel for the defence to cross-examine again the witnesses who have already given evidence in the absence of the jury; for if he can induce the jury to think that the confession was obtained through some threat or promise, its value will be enormously weakened. The weight and value of the evidence are always matters for the jury."
4. In the present case the material part of the direction by the judge to the jury was as follows:
"Now I come on to deal with the question of a confession which is absolutely central and crucial to this case. In the course of the tape recorded interviews; and you heard part of them played, the defendant made statements which you may think were clearly adverse to his case. In short, he admitted, you may think, that he played a part in the conspiracy alleged and that he was paid to do so and in law; as in ordinary English language, an acknowledge of guilt of that kind is a confession. The defendant's case is that although he made the confession, it is not true and in deciding whether you can safely rely upon that confession you have to decide two matters. Firstly, did the defendant, in fact, make the confession? Well, that is not in issue in this case, is it? That he made it? So there is no difficulty about that. But if you are sure that he did make a confession, then you go on to consider the second question which you may think is the important one, are you sure that the confession is true and when deciding this you should have regard to all the circumstances in which it came to be made and consider whether there were any circumstances which might cast doubt upon its reliability. You should decide whether it should be made voluntary (sic) or was or may have been made as a result of oppression or other improper circumstances. Now it is right to say that a number of matters were put to Mr Whittick and Mr Finnegan which amounted, you may think, to very serious allegations of oppression and impropriety, those allegations were all denied and no evidence whatsoever has been called to support or to substantial that (sic) allegations. Nevertheless, it is for you to assess what weight should be given to the confession. If you are not sure for whatever reason that the confession is true, you must disregard it. If, on the other hand, you are sure that it is true you may rely on it even if it was or may have been made as a result of oppression or other improper circumstances."
This part of the direction was based on a model direction suggested by the Judicial Studies Board and the last three sentences were taken verbatim from that model.
5. The question certified by the Court of Appeal is:
"Whether, in view of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, a Judge, who has ruled pursuant to Section 76(2) of the Police and Criminal Evidence Act 1984 that evidence of an alleged confession has not been obtained by oppression, nor has it been obtained in consequence of anything said or done which is likely to render unreliable any confession, is required to direct the jury, if they conclude that the alleged confession may have been so obtained, they must disregard it."
6. Mr McNulty's submission is that where the defendant makes the case that his confession was obtained by oppression or other improper conduct, then the judge, who will already have ruled on the voir dire that the confession is admissible, must direct the jury:
"It has been suggested on the defendant's behalf that his confession in this case was compelled as a result of improper compulsion exerted upon him by the investigating officers. You should consider whether it was so obtained and you should disregard it unless you are sure that it was not made as a result of improper compulsion."
Mr McNulty's submission is based on article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms which provides:
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
7. Before considering Mr McNulty's submission it is relevant to consider some of the common law principles relating to the admissibility of a confession and its consideration by a jury. It is clear that there are two principal reasons underlying the rule that a confession obtained by oppression should not be admitted in evidence. One reason, which has long been stated by the judges, is that where a confession is made as a result of oppression it may well be unreliable, because the confession may have been given, not with the intention of telling the truth, but from a desire to escape the oppression imposed on, or the harm threatened to, the suspect. A further reason, stated in more recent years, is that in a civilised society a person should not be compelled to incriminate himself, and a person in custody should not be subjected by the police to illtreatment or improper pressure in order to extract a confession: see Wong Kam-ming v The Queen  AC 247,261 and Lam Chi-ming v The Queen  2 AC 212,220 E-G.
8. These two reasons also underlie the decision of the European Court of Human Rights in Saunders v The United Kingdom  23 EHRR 313 that the requirement of fairness contained in article 6 of the European Convention includes the right to silence and the right not to incriminate oneself. The Court stated:
"68. The Court recalls that, although not specifically mentioned in Article 6 of the Convention, the right to silence and the right not to incriminate oneself, are generally recognised international standards which lie at the heart of the notion of a fair procedure under article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of article 6. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence contained in article 6(2) of the Convention.
69. The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent
9. In the course of the submissions made to the House reference was made to the judgment of the Court of Criminal Appeal in R v Bass  1QB 680 and the judgment of the Privy Council in Chan Wei Keung v The Queen  2AC 160. In R v Bass (where Lord Goddard was also a member of the court) Byrne J stated at page 684:
"It is to be observed, as this court pointed out in Rex v Murray, that while it is for the presiding judge to rule whether a statement is admissible, it is for the jury to determine the weight to be given to it if he admits it, and thus, when a statement has been admitted by the judge, he should direct the jury to apply to their consideration of it the principle as stated by Lord Sumner (viz, in Ibrahim v Rex), and he should further tell them that if they are not satisfied that it was made voluntarily, they should give it no weight at all and disregard it."
10. In Chan Wei Keung v The Queen the Privy Council disapproved the ruling in R v Bass that where the judge has ruled that a confession is voluntary he should then tell the jury that if they are not satisfied that the confession was made voluntarily, they should give it no weight at all and disregard it. The Privy Council so decided for the reason stated by the High Court of Australia in Basto v The Queen  91 CLR 628,640:
"That a statement may not be voluntary and yet according to circumstances may be safely acted upon as representing the truth is apparent if the case is considered of a promise of advantage being held out by a person in authority. A statement induced by such a promise is involuntary within the doctrine of the common law but it is plain enough that the inducement is not of such a kind as often will be really likely to result in a prisoner's making an untrue confessional statement."
In making this observation the High Court would, no doubt, have had in mind the way in which the common law had developed so that, as stated by the Criminal Law Revision Committee in paragraph 57 of their Report:
"Any threat or inducement, however mild or slight, uttered or held out by a person in authority makes a resulting confession inadmissible. The authorities are firm that there is no exception even for trivial inducements."
11. However, it is clear from the judgment of the Privy Council, which approved the judgment of Lord Goddard in R v Murray  1KB 391, that the Board fully accepted and endorsed the principle that a jury are fully entitled to have regard to all the circumstances in deciding whether they should give any weight to a confession. And in the judgment of the Court of Appeal in R v Burgess  2 QB 112, applying the approach laid down in Chang Wei Keung v The Queen, Lord Parker CJ stated at pp 117-118:
"The position now is that the admissibility is a matter for the judge; that it is thereafter unnecessary to leave the same matters to the jury; but that the jury should be told that what weight they attach to the confession depends on all the circumstances in which it was taken, and that it is their right to give such weight to it as they think fit."
This division of functions between the judge and the jury, admissibility a matter for the judge, weight a matter for the jury, is not only the law in the United Kingdom, it is the law in Australia (Basto v The Queen (1954) 91 CLR 628), in Canada (R v McAloon  OR 441), and in the United States of America (Lego v Toomey (1972) 404 US 477).
12. In my respectful opinion Parliament in passing section 76(2) of the Police and Criminal Evidence Act 1984 (PACE) had no intention of altering the well established principle that the admissibility of a confession is a matter for the judge and the weight of the confession is a matter for the jury. The wording of section 76(2) is based on clause 2(2) of the draft Criminal Evidence Bill annexed to the Eleventh Report of the Criminal Law Revision Committee which states:
"(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by the accused, it is represented to the court that the confession was or may have been made in consequence of oppressive treatment of the accused or in consequence of any threat or inducement, the court shall not allow the confession to be given in evidence by the prosecution (whether by virtue of this section or otherwise) except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) -
(a) was not obtained by oppressive treatment of the accused; and
(b) was not made in consequence of any threat or inducement of a sort likely, in the circumstances existing at the time, to render unreliable any confession which might be made by the accused in consequence thereof."
It is clear from paragraph 67 of the Report (set out in paragraph 2 above) that the Committee considered that the jury should only concern themselves with weight.
13. I consider that the position under the common law in relation to section 76(2) is correctly stated by Mirfield on Silence, Confessions and Improperly Obtained Evidence (1997) pp 51, 52:
"It is the judicial function to decide all questions of admissibility relating to a confession, the jury function to determine whether or not the confession is true
It would seem quite clear, in principle, that the voluntariness of the confession, as opposed to its truthfulness, is not an issue for the trier of fact. Of course, evidence of the circumstances in which the confession was made may go to the former issue as well as to the latter. Hence, it is open to the accused to cross-examine before the jury witnesses who gave evidence on the voir dire. Equally, the accused himself is entitled to give evidence before them about the circumstances in which the confession came to be made. It by no means follows, as the Court of Criminal Appeal held in Bass, that the jury should be directed by the judge that, if not themselves satisfied that the confession was made voluntarily, they should disregard it. There seems to be no good reason for the accused to have two bites of the cherry in relation to the issue of admissibility. Fortunately, the law does not now seem to be as stated in Bass. There are five pre-Act decisions, two in the Privy Council and three in the Court of Appeal,3 which expressly or impliedly reject the Bass view. Their effect is that the jury should be directed to consider the evidence of the circumstances in which the confession was made in deciding upon the weight and value to be attached to that confession. In other words, the jury may perfectly properly convict on the basis of a confession they believe to have been acquired by, say, oppression, as long as they believe it to be true. None of this powerful authority has been called into question in any reported decision under the 1984 Act, and it seems clear that the law, in this respect, remains unaltered.
3 Chan Wei Keung  2 AC 160; Ragho Prasad  1 WLR 469; Burgess  2 QB 112; Ovenell  1 QB 17; McCarthy (1980) 70 Cr.App.R 270. See also Ajodha v State  AC 204, at 221 (per Lord Bridge) for a dictum to similar effect. An argument that the statement of the law to be found in McCarthy, at 272, supported the Bass view was rejected in Ragho Prasad  1 WLR 469, at 473."
14. The law is clear that the judge, and not the jury, must determine disputed facts relating to the question whether a statement can be taken into account as evidence. In Bartlett v Smith (1843) 11 M&W 483,486 Alderson B said:
"Where a question arises as to the admissibility of evidence, the facts upon which its admissibility depends are to be determined by the judge, and not by the jury. If the opposite course were adopted, it would be equivalent to leaving it to the jury to say whether a particular thing were evidence or not."
And in Minter v Priest  AC 558, 581-582, Lord Atkin said:
"The question is one of admissibility of evidence: and on all such questions it is for the judge to decide after hearing, if necessary, evidence on both sides bearing on any contested question of fact relevant to the question."
If a judge directed a jury that, even if they were satisfied that a confession was true, they must exclude it from their consideration if they concluded that it might have been obtained by oppression, the jury, in my opinion, would not themselves be deciding what weight to give to the confession, rather they would be determining facts relevant to the question whether it could be taken into account as evidence.
15. Section 82(3) of PACE provides:
"Nothing in this Part of this Act shall prejudice any power of a court to exclude evidence (whether by preventing questions being put or otherwise) at its discretion."
In R v Sat-Bhambra  88 Cr App R 55 the Court of Appeal held that where a judge had ruled under section 76(2) that a confession was admissible, he could subsequently decide to exclude the confession pursuant to section 82(3) if fresh evidence caused him to change his mind. But such a decision is taken by the judge on an assessment of the facts by him and not by the jury, and is not an exception to the principle that the jury are only concerned with the weight of a confession which is not excluded by the judge from their consideration.
16. Furthermore the division of functions has, as the Court of Appeal noted in its judgment in the present case, significant advantages for ensuring that justice is done. First, it ensures that if the judge rules that a confession is inadmissible, the jury will never become aware of that confession which, notwithstanding that it is inadmissible, the jury might have difficulty in putting out of their minds in deciding on guilt or innocence if they became aware of it. Secondly, because the evidence given on the voir dire for the defendant is never revealed to the jury, the defendant is not inhibited in the voir dire from giving evidence which supports his case in relation to admissibility but which might well harm his case before the jury on the issue of guilt or innocence. Thirdly, in ruling that a confession is admissible, the judge will give reasons for his decisions which are open to scrutiny by an appellant court.
17. Mr McNulty's submits that where the defendant alleges that a confession has been obtained by oppression or other wrongful conduct there is a breach of article 6(1) unless the jury is specifically directed that they should reject and disregard the confession unless they are sure that it was not obtained by such conduct. Counsel bases this submission on the argument that unless such a direction is given the jury, who will be considering the weight to be given to the confession, may decide that the confession is true even if they are not sure that it was not obtained by oppression or other improper conduct and such a decision would constitute a breach of article 6(1) because, even if a confession is true, a defendant has a right not to be compelled to incriminate himself.
18. As I have observed in paragraph 8 the decision of the European Court in Saunders v United Kingdom (1996) 23 EHRR 313 recognises that there are two elements in the protection given to a defendant in respect of a confession. One element is that a confession obtained by oppression may be untrue and therefore reliance on it may lead to a miscarriage of justice. The other element is that, even if the confession is true, in a civilised society a person should not be compelled to incriminate himself against his will. The argument advanced by Mr McNulty is that both elements must be upheld and protected by the jury. He supports this argument by reference to Section 6 of the Human Rights Act 1998 which provides:
"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(3) In this section "public authority" includes -
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament."
Counsel submits that if a jury accepts, and convicts in reliance on, a confession which they are satisfied is true where they are not satisfied that it was not obtained by oppression or other improper conduct, they will be acting in a way which is incompatible with the Convention right to a fair trial.
19. My Lords, I am unable to accept this submission. In my opinion it is artificial to regard the jury as a distinct tribunal or court to be viewed as separate from the trial judge or as a "public authority" separate and distinct from the court of which they form a part. I consider that in a trial conducted with a jury the "tribunal established by law" referred to in article 6(1) is the judge and the jury. In this mode of trial under the common law procedure it is the judge who protects the defendant's right not to incriminate himself by being compelled to make a confession (even if it is true) against his will, and the judge also protects the accused against the danger that a confession may go before the jury which may well be untrue because it was obtained by oppression or improper conduct. In addition the jury provide further protection to the defendant because they will be entitled to reject the confession as unreliable on the ground that there is a reasonable possibility that it is untruthful if (contrary to the view which the judge will have formed on the voir dire) they are not satisfied that it was not obtained by oppression or improper conduct. The division of functions, admissibility a question for the judge, weight a question for the jury, has been recognised throughout the common law world.
20. The European Court has made it clear that it is for national law to lay down rules relating to the admissibility of evidence. In Schenk v Switzerland (1988) 13 EHRR 242 the Court states in paragraph 46:
"46. While article 6 of the Convention guarantees the right to a fair trial, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law.
The court therefore cannot exclude as a matter of principle and in the abstract that unlawfully obtained evidence of the present kind may be admissible. It has only to ascertain whether Mr Schenk's trial as a whole was fair."
In Miailhe v France (No 2) (1996) 23 EHRR 491 the Court states in paragraphs 43 and 44:
"43. It is not for the Court to substitute its view for that of the national courts which are primarily competent to determine the admissibility of evidence. It must nevertheless satisfy itself that the proceedings as a whole were fair, having regard to any possible irregularities before the case was brought before the courts of trial and appeal and checking that those courts had been able to remedy them if there were any.
44. The Court points out that in the instant case the ordinary courts did within the limits of their jurisdiction, consider the objections of nullity raised by Mr Miailhe and dismissed them.