Regina v. Mushtaq (Appellant) (On Appeal from the Court of Appeal (Criminal Division))
48. I recognise, of course, that in adopting this approach, the House is departing from the law as laid down by the Privy Council in Chan Wei Keung v The Queen  2 AC 160 where the judgment of Byrne J in R v Bass was first criticised through the medium of the judgments in the High Court of Australia in Basto v The Queen (1954) 91 CLR 628 and then disapproved. I recognise, equally, that the approach in Chan Wei Keung v The Queen has not hitherto given rise to difficulties in practice. Nevertheless, for the reasons which I have given, it appears to me that the approach which I have indicated is required in a system which contains section 76(2) of PACE.
49. If there were any doubt about the proper approach, however, it would be removed by article 6(1) of the Convention, the relevant part of which provides:
It is well known that among the rights implied into article 6(1) is a right against self-incrimination. It is equally well established that this implied right may be modified or restricted to serve a legitimate aim in the public interest. Brown v Stott  1 AC 681 may serve as authority for both propositions.
50. At the hearing of the appeal the Crown did not dispute the existence of the implied right against self-incrimination under article 6(1), nor did they argue that, in the present case, it should yield to any countervailing public interest. Rather, the Crown's contention was that the Convention right had been fully respected by the operation of sections 76(2) and 82(3) which gave the judge full power to prevent the jury from using a confession that might have been obtained in violation of the right against self-incrimination, while leaving the evaluation of the evidence to the jury. When the judge and jury performed their respective, distinct, roles in this way, the court as a whole complied with the requirements of article 6(1).
51. In support of his submission Mr Perry referred to the decision of the European Commission of Human Rights in G v United Kingdom (Application No 9370/81) (1983) 35 DR 75, which antedates section 76(2) of PACE. The applicant went to a police station along with his girlfriend who was to be interviewed on an unspecified matter. He was arrested and questioned about a burglary. He made a confession, but he claimed that he had done so because the police had refused to let him see his solicitor and had eventually said that he would not be allowed to see him until he had made a confession. At the applicant's trial, the evidence relating to the obtaining of the confession was heard by the judge on a voir dire. At the end of the voir dire the judge ruled that the applicant's confession statements had been given voluntarily and that the Judges' Rules had not been breached. He accordingly admitted them. The Commission held that there had been no breach of article 6(1). Referring to the judge's decision to admit the evidence, the Commission said at p 80:
As can be seen from this passage, the question which the Commission were considering was whether the procedure adopted at the trial provided an adequate guarantee for evaluating the admissibility of challenged evidence. They decided that it did. The applicant had not advanced any argument relating to the right against self-incrimination implied in article 6(1). This is perhaps not surprising since the existence of the implied right only really became clear some years later in Funke v France (1993) 16 EHRR 297, Murray v United Kingdom (1996) 22 EHRR 29 and Saunders v United Kingdom (1996) 23 EHRR 313. However that may be, the fact is that the Commission did not deal with the right against self-incrimination and so the decision does not afford guidance in the circumstances of the present case.
52. Before the Court of Appeal, and in his written case before the House, Mr McNulty sought to argue that the jury, as a separate entity, fell to be regarded as a "public authority" for the purposes of section 6(3) of the Human Rights Act 1998. It is, however, for the court, comprising both the judge and jury, that the United Kingdom government is responsible in international law before the European Court of Human Rights. This can be seen from the well-known cases where the European Court has considered allegations of bias on the part of a jury and the way that the judge dealt with them. It is accordingly appropriate to treat the court made up of both judge and jury as the public authority for the purposes of section 6: Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank  1 AC 546.
53. In terms of section 6(1) of the 1998 Act it is therefore unlawful for the judge and jury to act in a way which is incompatible with a defendant's right against self-incrimination as implied into article 6(1). Here the judge directed the jury that, if they were sure that the appellant's confession was true, they might rely on it, "even if it was, or may have been, made as a result of oppression or other improper circumstances." This was a direction that, in reaching their verdict and so, for article 6(1) purposes, determining the criminal charges against the appellant, the jury were entitled to take into account a confession which they considered was, or might have been, obtained by oppression or any other improper means in violation of his right against self-incrimination. Such a direction was an invitation to the jury to act in a way that was incompatible with the appellant's right against self-incrimination under article 6(1). As such, the direction was itself incompatible with that right.
54. It follows, both on the basis of section 76(2) when viewed without regard to the Convention and on the basis of the appellant's article 6(1) Convention right against self-incrimination, that the judge misdirected the jury when he said that, if they were sure that the confession was true, they might rely on it, even if it was, or might have been, made as a result of oppression or other improper circumstances.
55. It is only fitting to acknowledge that, in giving this direction, the judge was following the guidance from the Judicial Studies Board that was current at the time. That guidance was modified to reflect the comments of the Court of Appeal in this case. Clearly, neither version will afford appropriate guidance in the light of the decision by the House today. Having indicated the approach which should be applied in principle, I would not usurp the function of the Judicial Studies Board by attempting to draft model directions to give effect to that approach. I would only observe that there is often no dispute that, if what the defendant said happened did indeed happen, the confession should be excluded under one or other of the paragraphs in section 76(2) of PACE. The only real dispute is as to whether the defendant's account as found in the evidence is true. In such a clear-cut case it may well be enough for the judge to indicate that, if the jury consider that the confession was, or may have been, obtained in the way described by the defendant, they must disregard it.
56. Mr McNulty submitted that, if the House reached the view that there had been a misdirection in relation to the confession, the appellant's conviction could not be regarded as safe and should accordingly be quashed. Like the Court of Appeal, I would reject that submission.
57. As I mentioned at the outset, this was a case where the appellant chose not to give evidence. The only defence evidence was about his wife's illness: it came from her and, in the form of a statement, from a consultant neurologist. There was accordingly no evidence from the appellant or from any witness for the defence about the circumstances in which he had come to make the confession. The only evidence about the interview in which he made the confession was from the police officers, DC Whittick and DS Finnegan, and from the records relating to the interview which gave the times when various stages began and ended. Many allegations of improper conduct were put to the officers in cross-examination: for example, that they had coached the appellant as to what he should say in the fifteen-minute gap before the interview began; that they had threatened to make out that the appellant was the Mr Big of the organisation and that he would get a heavier sentence; that they had threatened to object to bail for the appellant, with all the particular repercussions arising from his wife's illness. It would be fruitless to narrate all of the allegations since they were all denied, despite what the judge described as "vigorous" cross-examination. In his summing up the judge went through the evidence of DC Whittick and DS Finnegan in considerable detail, but at the end he said this:
58. Mr McNulty did not challenge this passage in the summing up. What it shows is that in this case there was no evidence whatever of oppression, or of any other improper means, for the prosecution to disprove or for the jury to consider. The direction to the jury as to what they might do if they found that the confession had been obtained by oppression or any other improper means was, accordingly, unnecessary and unduly favourable to the appellant. In those circumstances, the fact that the judge did not go further in his direction cannot possibly affect the fairness of the appellant's trial or the safety of his conviction.
59. For these reasons, I would answer the certified question in the affirmative and dismiss the appeal.
60. I have had the advantage of reading in draft the opinions prepared by my noble and learned friends Lord Hutton and Lord Rodger of Earlsferry. I am in full agreement with the conclusion which they have reached, that the appeal should be dismissed, but because they have followed slightly differing routes to that conclusion and would give different answers to the certified question, I wish to express my own reasoning in short compass.
61. It has long been recognised that the content of a confession made by an accused person has to be evaluated with great care in order to determine whether it can safely be accepted as an admission against his interest. The approach of the law to that evaluation has varied over the years and the rules applied by the courts have to be kept under review to ensure that they reflect the standards accepted by each generation.
62. It has to be borne in mind that a confession which has been properly obtained may nevertheless be untrue. The unhappy example of Judith Ward (R v Ward  1 WLR 619) serves as a reminder of this. Conversely, if a confession has been obtained by means which the law condemns as improper, it is quite possible that it may nevertheless be true - a fact which would cause no surprise to anyone with experience of criminal practice. Improper compulsion creates a risk, however, that the confession may be untrue, which makes it unsafe to rely upon it, and the more considerable the compulsion or oppression, the greater the risk that the confession is unreliable. One may add to this risk the two further factors which have influenced the law in rejecting confessions obtained by compulsion, the right against self-incrimination and the need to exercise a degree of controlling discipline over undesirable police practices.
63. The stage which the long process of development of English criminal law governing confessions has reached is the statutory provision contained in section 76(2) of the Police and Criminal Evidence Act 1984 ("PACE"), which is mirrored in the Police and Criminal Evidence (Northern Ireland) Order 1989, art 74(2) (SI 1989/1342 (NI 12)):
For convenience I shall use the term "oppression" in this opinion as a compendious term to include all of the exclusionary matters set out in paragraphs (a) and (b) of section 76(2).
64. Oppression is not defined in PACE but its meaning has been discussed in a number of decided cases, summarised in Archbold, Criminal Pleading, Evidence and Practice, 2005 ed, paras 15-358 to 15-360. For present purposes I am content to use the definition propounded by Lord MacDermott in an address to the Bentham Club in 1968 and adopted by the Court of Appeal in R v Prager  1 WLR 260, 266:
65. Central to the issues in this appeal is a proper understanding of the respective roles of the judge and jury in dealing with evidence which the prosecution seeks to adduce of confession statements made by accused persons. As Lord Hutton has emphasised throughout his opinion, admissibility of a confession is a matter for the judge, while the jury's concern is with the weight to be given to its contents. I do not understand Lord Rodger of Earlsferry to cast any doubt on the universality of application of this principle.
66. I fully agree with the conclusion reached by both Lord Hutton and Lord Rodger of Earlsferry, affirming that contained in paragraph 41 of the judgment of the Court of Appeal, that the verdict was not unsafe and that the appeal should accordingly be dismissed. The issue of more immediate importance, which is defined in the certified question, is the direction which a trial judge should give a jury in a case such as the present, and I shall focus on that issue.
67. The certified question is posed in the following terms:
In order to answer this it is necessary to consider, not only the direction given by the judge, which derives from the specimen directions recommended by the Judicial Studies Board, but the type of direction which has found favour in previous decided cases. One must then determine whether any of these fully satisfies the requirements of the common law, section 76(2) of PACE and article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). I may say at once that, for the reasons which I shall give, I consider that the JSB direction, both in the form adopted by the judge and in its amended form, should not in my view be regarded as sufficient to meet those requirements. I also think that the decisions of the Privy Council in Chan Wei Keung v The Queen  2 AC 160 and the High Court of Australia in Basto v The Queen (1954) 91 CLR 628 should no longer be followed. In its narrowest terms, I think that the question is whether it is sufficient for a judge to warn the jury that they may consider that they should give no weight to a confession and disregard it if they conclude that it may have been obtained as the result of oppression; or whether the judge must go further and direct them that if they so conclude they are required to disregard it.
68. In my opinion the requirements of the common law, if they stood alone, would be satisfied by returning to the wording of the direction set out in the decision of the Court of Criminal Appeal in R v Bass  1 QB 680, in which Byrne J, giving the judgment of the court, stated at page 684:
In order to accommodate to the wording of section 76(2) of PACE a reference to oppression would have to be substituted for the word "voluntarily".
69. One may observe that the Bass direction is not expressed in mandatory terms, and it cannot in my opinion be said that the common law authorities require a judge to go so far as to direct the jury that they must give such a confession no weight and disregard it. It was argued on behalf of the appellant that such a mandatory direction is required both by section 76(2) of PACE and by article 6 of the Convention. I would not myself accept that section 76(2) of PACE requires the judge to direct the jury to disregard a confession which was or may have been obtained by oppression, as Lord Rodger of Earlsferry has stated in paragraph 47 of his opinion. It seems to me that the reference to the court in that subsection is intended to mean the judge. I therefore am of opinion that section 76(2) does not deal with the jury's function in considering the weight to be attached to a confession.
70. I therefore turn to consider article 6(1) of the Convention, which requires a fair hearing (itself a basic principle of the common law), and to the jurisprudence of the European Court of Human Rights which expands on the requirements of that provision. Section 6(1) of the Human Rights Act 1998 makes it unlawful for a public authority, which is defined in section 6(3) as including a court or tribunal, to act in a way which is incompatible with a Convention right.
71. In the case-law of the European Court of Human Rights, as developed in its decisions in Funke v France (1993) 16 EHRR 297, Murray v United Kingdom (1996) 22 EHRR 29 and Saunders v United Kingdom (1996) 23 EHRR 313, it has become accepted that the right not to incriminate oneself is a constituent element of a fair procedure under article 6(1) - see, in particular paragraph 69 of the Court's judgment in Saunders v United Kingdom. This principle is, of course, clearly recognised as part of the common law: see, eg, Lam Chi-Ming v The Queen  AC 212, 220, per Lord Griffiths.
72. The issue then resolves itself into asking whether in the light of that principle it is compatible with the Convention right to a fair hearing contained in article 6(1) for the possibility to be left open that the jury may take into account a confession made by an accused person and rely upon it in assessing his guilt on a charge of a criminal offence if they consider that the content is true, notwithstanding the fact that they consider that it has been or may have been obtained as the result of oppression.
73. My Lords, I find myself impelled to the conclusion that it is not so compatible. When a confession has been obtained by oppression, that is a form of the compulsion which the European Court of Human Rights has stated firmly constitutes a breach of the right of an accused person not to incriminate himself. If, as the law holds, it is open to a jury to accept and act upon a confession in circumstances where it has been or may have been obtained as a result of oppression, then it seems to me inescapable that that is incompatible with his article 6 rights. It must follow that the direction given by the judge in the present case and the amended model direction recommended by the Judicial Studies Board will not suffice to meet these requirements.
74. I do not consider that this conclusion constitutes an invasion of the principle that admissibility of a confession is a matter solely for the judge and that the jury is not concerned with that, but only with the weight to be attached to it. I would regard the court for the purposes of section 6(3)(a) of the Human Rights Act 1998 as being a composite of the judge and the jury, each with its own functions. If the result of the process of discharge of its function by either constituent element is the use against an accused person of a confession obtained as a result of oppression, that is incompatible with his article 6 rights. Such a conclusion in my view does not invest the jury with any function in relation to admissibility of the confession and leaves the respective roles of the judge and jury distinct and inviolate. If a piece of evidence is inadmissible, it is ruled out and is not part of the evidence in the case. As such it will not go before the jury at all and will not be considered by it. A confession of the nature with which we are concerned will have been admitted by the judge's prior ruling and so does form part of the evidence placed before the jury and considered by them. If they consider that it may have been obtained by oppression, a view which they are entitled to adopt notwithstanding the judge's earlier ruling, then by virtue of the judge's direction it must be disregarded and may not be given any weight. That does not in my opinion amount to giving the jury a say in the admission of evidence or detract from the integrity of the principle that it is the province solely of the trial judge.
75. I therefore consider that the judge should direct the jury in more prescriptive terms than the Bass direction, to the effect that unless that they are satisfied beyond reasonable doubt that the confession was not obtained as a result of oppression, they must disregard it. I would answer the certified question in the affirmative, although, for the reasons I have given, I would dismiss the appeal.
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