Regina v. Mushtaq (Appellant) (On Appeal from the Court of Appeal (Criminal Division))
21. English law lays down that the decision as to the admissibility of evidence, including the decision whether to exclude it because it was obtained unfairly, is to be taken by the judge alone and that the jury are only concerned with the weight of the evidence. This division of functions was considered and recognised to be fair by the European Commission of Human Rights in G v United Kingdom 9370/81 (1983) 35 DR 75. In its decision the Commission stated:
In my respectful opinion the guidance afforded by this decision is not weakened because the applicant did not expressly refer to the right against self-incrimination, but he did allege that the investigating police officer had threatened him. Moreover the Commission stated that it was considering "the system of guarantees for evaluating the admissibility of challenged evidence".
22. Therefore I consider that the division of functions does not offend article 6 of the European Convention and that the Court of Appeal was right to state in paragraph 34 of its judgment:
23. 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 "is required to direct the jury, if they conclude that the alleged confession may have been [obtained by oppression] they must disregard it." I would answer this question in the negative because, for the reasons which I have given, I consider that the defendant's right not to incriminate himself against his will is protected by the judge and his right not to be convicted on the basis of a confession which may be untrue because it may have been obtained by oppression is protected both by the judge and also subsequently by the jury if the judge admits the confession.
24. Therefore I agree with the decision of the Court of Appeal that the last sentence of the judge's direction was a correct reflection of the law. However the Court of Appeal in paragraphs 39 and 40 of their judgment referred to the last sentence of the direction:
and stated that the jury would have received more assistance if the words in square brackets had been omitted. I also agree with this criticism because I think that the words might to some extent deflect the jury from concentrating on the question whether, if there was a reasonable possibility of oppression, it would be safe to rely on the confession as being truthful.
25. I would add that if, like the majority of the House, I had been of opinion that the judge's direction was a misdirection, I would have agreed with their view that as the appellant had given no evidence before the jury in support of his allegations of oppression, the reliance of the jury on the confession implicit in their verdicts was not unsafe.
26. For the reasons which I have given I would answer the certified question in the negative and would dismiss the appeal.
LORD PHILLIPS OF WORTH MATRAVERS
27. For the reasons given by my noble and learned friend Lord Rodger of Earlsferry I also would answer the certified question in the affirmative and dismiss the appeal.
LORD RODGER OF EARLSFERRY
28. On 23 April 2001 in the Crown Court at Kingston upon Thames, the appellant, Ashfaq Ahmed Mushtaq, was convicted of conspiring to defraud (count 1) and of possessing material designed or adapted for the making of a false instrument (count 3). Count 1 related to a conspiracy to defraud the major clearing banks and other financial institutions by manufacturing, selling and distributing counterfeit credit cards. Count 3 related to the appellant having in his custody or control an unembossed and unsigned credit card without lawful authority or excuse. The appellant was acquitted on count 2, which was a more serious charge relating to the possession of the credit card. On 20 April 2001 he was sentenced to a total of 3 years 6 months imprisonment. He has served his sentence.
29. In the course of the appellant's trial, the prosecution led evidence that various incriminating items with the appellant's fingerprints on them were found at an address at 32 Monega Road, which was said to be the centre of operations of the conspiracy in count 1. There was also evidence that, when the police searched the appellant's house, they found an incomplete credit card in his jacket. That was the subject of count 3. In addition, the prosecution sought to lead evidence of a statement which the appellant made to police officers who interviewed him at Snow Hill Police Station after the search of his home. In the statement the appellant gave a number of answers that amounted to a confession to count 1. He also admitted that he had the credit card, which was the subject of count 3, in his custody and control. His explanation was that he had found it in the street by chance two days before.
30. The appellant accepted that he had made the statements in the interview. Mr McNulty nevertheless made an application to exclude the evidence of those statements under section 76(2) of the Police and Criminal Evidence Act 1984 ("PACE"):
For the sake of brevity, I shall, for the most part, refer to the means described in paragraphs (a) and (b) of section 76(2) as "oppression or any other improper means". Section 82(3) provides:
Mr McNulty's submission was that the judge should not allow the appellant's answers to be given in evidence against him on the ground that the admissions were obtained as a result of oppression by police officers.
31. The background to this submission was the fact that, at the time of his arrest, the appellant's wife was critically ill in hospital. Her condition had caused her to become blind some seven days before. It was the appellant's practice to visit the hospital twice a day to give his wife food, as she had lost the ability to feed herself and she did not trust the hospital staff to provide her with food that complied with her religious requirements. As a result of his arrest early in the morning, the appellant had missed his first visit of the day and did not wish to have his wife told the reason for his absence in case it might cause her anxiety that could aggravate her illness. The appellant had informed the police of these matters at the time of his arrest.
32. Before determining counsel's application, the judge held a voir dire. The police officers concerned were cross-examined to the effect that they had threatened to refuse bail and to exaggerate his involvement in the crime under investigation if he did not make full admissions in the absence of his solicitor. The appellant also gave evidence. Having considered the evidence, the judge rejected the section 76 submission and ruled that evidence of the interviews should be placed before the jury.
33. Subsequently, in the trial itself the police officers were examined and cross-examined in front of the jury and the same allegations were put to them as in the voir dire. The appellant did not give evidence.
34. In his summing up the judge directed the jury in these terms:
Following the judge's summing up, containing these directions on the confession evidence, the jury convicted the appellant on counts 1 and 3.
35. The appellant was granted leave to appeal against his conviction on the ground that the last three sentences of the passage from the judge's summing up contained a misdirection inasmuch as the judge directed the jury that they could proceed in a manner that was incompatible with the appellant's right against self-incrimination under article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969) ("the Convention"). On 30 July 2002 the Court of Appeal (Criminal Division) (Kay LJ, Holland and Andrew Smith JJ) dismissed his appeal. On 19 September 2003 the court certified the following point of general public importance:
The House granted leave to appeal.
36. The point of principle raised by the certified question and argued before the House is indeed of general importance. But I cannot help noticing at the outset that, since the appellant did not give evidence and the police officers denied all the suggestions of oppressive behaviour in conducting the interview that were put to them in cross-examination, it appears that there was actually no evidence of oppression before the jury. If that was indeed the position, there was no need for the judge to give any direction on what the jury should do if they found that there was, or might have been, oppression. I return to the point below. Since, however, the question of law has been fully argued, the House should deal with it.
37. The starting point is the proposition that only admissible evidence should be placed before the jury. Some evidence is, by its very nature, inadmissible in law and so, when objection is taken to the leading of such evidence, the judge can rule on it without having to carry out any factual investigation. Evidence of a confession is different, however, since the admissibility of that evidence depends on whether the confession was voluntary. The position is now regulated by section 76(2) of PACE. Where the admissibility of a confession is challenged, the judge cannot allow it to be given in evidence against the defendant except in so far as the prosecution proves to the judge beyond reasonable doubt that it was not obtained by oppression or other improper means. Therefore, where the defendant objects to the alleged confession being given in evidence, witnesses are examined on a voir dire, in the absence of the jury, to establish the circumstances. The appropriate prosecution witnesses are examined and cross-examined on the matter and the defendant himself may give evidence and be cross-examined on it. The judge then decides whether to admit or exclude the confession. If the confession is excluded, the jury hears nothing about it. Where the judge decides that the confession is to be given in evidence, if the defendant's counsel wishes, the circumstances in which it was obtained will again be explored in evidence before the jury so that they can decide what weight or value to attach to it: R v Murray  1 KB 391, 393 per Lord Goddard CJ; Chan Wei Keung v The Queen  2 AC 160, 172D - E per Lord Hodson. There are sometimes greater or lesser differences between the evidence as led and considered by the judge in the voir dire and the evidence given in the trial which the jury have to consider.
38. These aspects of the system as it presently operates are not in dispute. Similarly, the advantages of that system for a defendant are not in doubt. Where the judge decides to exclude the confession, the voir dire procedure avoids any risk that the jury might be prejudiced by hearing disputed evidence about the defendant having made a confession, even if they were subsequently told to disregard it. Often the only person who can speak to the circumstances, apart from the police officers, will be the defendant. The voir dire system allows him to give his evidence on this limited but important matter as to the admissibility of the confession, without infringing his right to elect not to give evidence in the trial of the general issue: Wong Kam-ming v. The Queen  AC 247, 257 per Lord Edmund Davies, citing with approval Chitambala v. The Queen  R. & N. 166, 169 - 170, per Clayden AFCJ. Moreover, even where the confession is admitted, the circumstances can be explored again in evidence before the jury who can be invited to take them into account in deciding the weight and value to be attached to the statement. To that extent, at least, the defendant gets a second bite at the cherry.
39. The appellant submits, however, that the present practice is defective because the jury is limited to considering the circumstances for the purpose of deciding the weight and value to be attached to the confession. Rather, they should be directed that, if, having heard all the evidence, they find that the confession was, or may have been, obtained by oppression or any other improper means, they must disregard it.
40. For the Crown Mr Perry submitted that such a direction would amount to an invitation to the jury to determine afresh the admissibility of the evidence of the confession. As was recognised by Parliament in enacting section 76(2), that question was one for the judge alone. Before admitting the confession, he had to be satisfied to the criminal standard that it had not been obtained by oppression or other improper means. This was a tougher test than in many comparable systems. Moreover, if, after the judge had made his ruling in favour of admitting the evidence, circumstances emerged which led him to change his mind, then he had power, under section 82(3) of PACE, to take such steps as were necessary to prevent injustice. As Lord Lane CJ explained in Sat-Bhambra (1989) 88 Cr App R 55, 62
Given the available safeguards, the approach advocated by the appellant was unnecessary and might cause difficulties where a co-defendant sought to rely on the confession. More importantly, it was wrong in principle. In a trial, the role of the jury was to determine the facts on the basis of the evidence that had been admitted, not to determine whether the evidence should have been presented to them. More particularly, they were concerned with determining what weight and value they should attribute to confession evidence, rather than with deciding whether it should have been admitted in the first place. Therefore, if, having considered all the circumstances, including any which pointed to the confession having been obtained by oppression or other improper means, the jury decided that what the defendant had said was true, they should indeed be free to take it into account. Directing the jury that they had to ignore such evidence would perplex them and run counter to the aim that verdicts should be based on the real facts of the case as revealed by the evidence.
41. My Lords, when considering the competing submissions, it is as well to bear in mind that the direction proposed by the appellant would be unlikely to affect the outcome of many cases, precisely because the test applied by the judge under section 76(2) is so strict. The judge can admit confession evidence only where he is satisfied beyond a reasonable doubt that it was not obtained by oppression or any other improper means. If there is anything in the evidence that gives rise to a reasonable doubt, he must exclude the confession. So the proposed direction would bite only where, despite the judge's view that, beyond a reasonable doubt, the confession was not obtained by oppression or any other improper means, the jury decided that it was, or might have been, obtained in that way. This is not likely to happen in a large proportion of cases.
42. It is important to notice that the Crown argument does not depend on any supposition that the jury will have come to a mistaken view as to the way that the confession was obtained. On the contrary, the Crown's contention is that in cases where the jury have rightly concluded that the confession was obtained by oppression or other improper means, they are to be told that they can still rely on it if they think that it is true.
43. Mr Perry argued that the appellant's proposed approach would involve the jury in decisions as to the admissibility of evidence. That argument is not, strictly speaking, accurate and, put that way, it may tend to conceal the true nature of the alteration in the roles of the judge and jury that may be involved. The decision as to whether the evidence should be admitted is for the judge and for the judge alone. It is taken by him at the end of the voir dire. If he rules that the confession should be given in evidence, the relevant evidence is admitted and led by the prosecution. The jury play no part in that step. In an ideal world, perhaps, the judge's decision to admit the confession would mean that the jury were not concerned at all with the circumstances in which it had been made. But, as Lord Justice Clerk Thomson observed in Chalmers v HM Advocate 1954 JC 66, 83, this seems to be a situation where logic must yield, since the jury cannot be asked to accept as an item of evidence a statement made by an accused, while being prevented from considering the circumstances under which it was made. So the jury must be able to take account of those circumstances in deciding what weight and value to attach to the confession. The appellant wants to go a significant step further. He seeks a direction that, if the jury come to the conclusion on the evidence that the confession was, or may have been, obtained by oppression or some other improper means, they must disregard it. In so far as the direction is one to disregard the evidence that has been admitted, it is no different from the kind of direction which, very importantly, Lord Lane CJ envisaged that the judge might give if, after admitting the evidence of a confession, he changed his mind and directed the jury to disregard it: Sat-Bhambra (1989) 88 Cr App R 55, 62. The difference is, however, that the trigger for the proposed direction is not the judge's but the jury's assessment of the circumstances in which the confession was obtained. Moreover, the effect of the proposed direction is that the jury must disregard a confession which has been admitted by the judge and given in evidence and which they might be disposed to accept as true. Viewed in that way, the proposed direction encroaches upon, rather than increases, the jury's freedom to assess and deploy the evidence placed before them.
44. At various points during the hearing before the House, it was emphasised that under the present system if a jury think that a confession was, or may have been, obtained by oppression, they are unlikely to accord it any weight or value. So there was no real difference between a situation where a jury give no weight or value to a confession in this way and one where they are told that they must disregard it. For all practical purposes, the present system achieved what the appellant was seeking.
45. That argument falls short if the rule against admitting an involuntary confession is not based simply on its potential unreliability. And it is indeed clear that, according to the more modern analysis at least, the rule rests on a rather wider basis. Giving the opinion of the Privy Council in Lam Chi-ming v The Queen  AC 212, 220E - F, Lord Griffiths said:
Therefore, even if a jury would be unlikely to rely on a confession which they considered had been obtained by compulsion, the question still remains whether, having regard to the principle that a man cannot be compelled to incriminate himself and having regard to the importance attached to proper behaviour by the police, the jury are entitled to rely on a confession which they consider was, or may have been, obtained by oppression or other improper means.
46. Since the three considerations mentioned by Lord Griffiths lie behind section 76(2), it respectfully seems to me that it is inconsistent with the very purpose of that provision to affirm that the jury are entitled to rely on a confession in such circumstances. Under section 76(2), if an objection to a confession is raised, the judge must exclude it unless he is satisfied beyond a reasonable doubt that it was not obtained by oppression or any other improper means. The evidence is excluded because, for all the kinds of reasons explained by Lord Griffiths, Parliament considers that it should not play any part in the jury's verdict. It flies in the face of that policy to say that a jury are entitled to rely on a confession even though, as the ultimate arbiters of all matters of fact, they properly consider that it was, or may have been, obtained by oppression or any other improper means.
47. In my view, therefore, the logic of section 76(2) of PACE really requires that the jury should be directed that, if they consider that the confession was, or may have been, obtained by oppression or in consequence of anything said or done which was likely to render it unreliable, they should disregard it. In giving effect to the policy of Parliament in this way, your Lordships are merely reverting to the approach laid down by the Court of Criminal Appeal (Lord Goddard CJ, Byrne and Parker JJ) in R v Bass  1 QB 680. Giving the judgment of the court, Byrne J quoted the well-known words of Lord Sumner in Ibrahim v R  AC 599, 609:
He then added, at p 684:
It seems clear that the court saw the direction to disregard the confession in such circumstances as part and parcel of the jury's exercise of attributing the appropriate weight to the confession: in circumstances where they found that it had not been voluntary, for reasons going back to the time of Lord Hale, they should give it no weight and should disregard it.