R v Mushtaq

The House considered the allocation of functions between judge and jury where a confession is challenged under section 76(2) of the Police and Criminal Evidence Act 1984 (PACE) and the implications of Article 6 of the European Convention on Human Rights. The court reiterated that admissibility is a matter for the judge and weight a matter for the jury, but held (by a majority) that, where a jury conclude that a confession was, or may have been, obtained by oppression or other improper means, they must be directed to disregard it unless they are satisfied beyond reasonable doubt that it was not so obtained. The House also held that, although the trial judge's direction in the present case contained an incorrect element, the conviction was safe because there was in practice no evidence of oppression before the jury.

Background and facts:

• The appellant, Ashfaq Ahmed Mushtaq, was convicted in the Crown Court at Kingston upon Thames in April 2001 of conspiring to defraud and of possessing material for making a false instrument. The prosecution relied in part on admissions made during taped police interviews. The appellant alleged those admissions may have been obtained by oppression and applied under section 76(2) PACE to exclude them; the judge held a voir dire, admitted the evidence and the statements were placed before the jury. The appellant was convicted and sentenced; leave to appeal to the Court of Appeal was refused and the point of law was certified to the House of Lords.

Nature of the appeal and issues:

• The appeal raised the certified question whether, having ruled under section 76(2) PACE that a confession was admissible, a judge is required by Article 6 of the Convention to direct the jury that if they conclude the confession may have been obtained by oppression or other improper means they must disregard it.

Procedural posture:

• The matter reached the House of Lords on the certified point after the Court of Appeal dismissed the appellant's appeal (reported at [2002] EWCA Crim 1943) and certified the question of public importance.

Court's reasoning and conclusions:

The House analysed common law authorities, the policy behind section 76(2) PACE and Strasbourg jurisprudence concerning the right against self-incrimination under Article 6. A majority concluded that because section 76(2) excludes evidence obtained by oppression and because Article 6 protects against compulsion to incriminate oneself, the jury must be directed that, unless they are sure beyond reasonable doubt that a confession was not obtained by oppression or improper means, they must disregard it. The majority regarded this as compatible with keeping admissibility principally a judicial function because it simply required the court (judge and jury together) to avoid the use of confession evidence obtained by compulsion.

The House nonetheless dismissed the appeal: the majority found that the conviction was safe because, in the present trial, there was effectively no evidence before the jury that the confession had been obtained by oppression, so any misdirection was not material to safety of the verdict.

Appeal dismissed. By a majority the House held that when a judge has admitted a confession under section 76(2) PACE the jury must be directed that if they conclude the confession was, or may have been, obtained by oppression or other improper means they must disregard it unless they are satisfied beyond reasonable doubt that it was not so obtained. The appellant's conviction was nonetheless upheld because there was no evidence of oppression before the jury and the misdirection did not render the verdict unsafe.

Trial: Crown Court at Kingston upon Thames (convictions 23 April 2001; sentence 20 April 2001). Appeal to the Court of Appeal (Criminal Division) dismissed [2002] EWCA Crim 1943; point of law certified on 19 September 2003. House of Lords: [2005] UKHL 25.