Regina v.Mushtaq (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

When a confession admitted by the trial judge may, in the jury’s view, have been obtained by oppression or other improper means within section 76(2) of the Police and Criminal Evidence Act 1984, the jury must disregard it. They cannot rely on such a confession merely because they believe it to be true.

This direction gives effect to the accused’s right against self-incrimination under article 6(1) of the Convention. It does not transfer responsibility for admissibility from the judge to the jury. The judge determines admissibility; the jury assesses the admitted evidence, subject to the mandatory direction. A misdirection on a purely hypothetical issue will not make a conviction unsafe where no evidence before the jury supports the alleged oppression.

The appellant was convicted of conspiracy to defraud and possessing material designed or adapted for making a false instrument. His police interview contained admissions. Following a voir dire, the trial judge rejected an allegation that the admissions had been obtained by oppressive police conduct and admitted the confession under section 76(2) of the Police and Criminal Evidence Act 1984.

The police officers were cross-examined about the alleged conduct before the jury, but the appellant gave no evidence at the trial. The judge directed that the jury could rely on the confession if satisfied that it was true, even if it was or might have been obtained by oppression or other improper circumstances. The Court of Appeal dismissed the appeal in [2002] EWCA Crim 1943.

The central issue was whether article 6(1) of the Convention required the jury to be directed to disregard a confession which they considered might have been obtained by oppression or other improper means.

1. The appeal was dismissed unanimously, but the certified question was answered affirmatively by a majority of four. Lord Rodger delivered the leading speech. Lord Steyn and Lord Phillips agreed with him. Lord Carswell reached the same answer by a partly different route. Lord Hutton would have answered the question negatively.

2. Per Lord Rodger, with Lord Steyn and Lord Phillips agreeing, the policy of section 76(2) of the Police and Criminal Evidence Act 1984 requires a jury to disregard a confession which they consider was or might have been obtained by oppression or other improper means. Exclusion rests not only on possible unreliability, but also on the right against self-incrimination and the importance of proper police conduct. It is inconsistent with that policy to permit reliance on an improperly obtained confession merely because the jury believes it to be true.

3. Lord Carswell agreed that a mandatory direction was required by article 6(1) of the Convention. He considered that section 76(2), viewed alone, governed the judge’s admissibility decision rather than the jury’s function. In his formulation, unless the jury were satisfied beyond reasonable doubt that the confession was not obtained by oppression, they had to disregard it.

4. The majority held that the mandatory direction preserves the distinct functions of judge and jury. The judge alone decides admissibility. Once admitted, the confession forms part of the evidence, but the jury must give it no weight if the condition identified in the direction is met. The court, comprising judge and jury, is the relevant public authority under section 6 of the Human Rights Act 1998.

5. The direction actually given invited the jury to act incompatibly with the appellant’s article 6(1) right against self-incrimination. The approach in R v Bass [1953] 1 QB 680 was restored and strengthened into a mandatory direction. The contrary approach in Chan Wei Keung v The Queen [1967] 2 AC 160 and Basto v The Queen (1954) 91 CLR 628 should no longer be followed.

6. The conviction was nevertheless safe. No evidence before the jury supported the allegations of oppression: the appellant did not testify and the police witnesses denied every allegation. A direction about possible oppression was therefore unnecessary and favourable to the appellant. The defective direction could not have affected the verdict.

1. House of Lords: The appeal was dismissed unanimously. By a majority of four to one, the House held that the jury must be directed to disregard a confession which they consider was or might have been obtained by oppression or other improper means.
2. Court of Appeal (Criminal Division): The appeal against conviction was dismissed in [2002] EWCA Crim 1943. The court subsequently certified a point of general public importance concerning article 6(1) and the required jury direction.
3. Crown Court at Kingston upon Thames: The appellant was convicted of conspiracy to defraud and possessing material designed or adapted for making a false instrument. The judge admitted the confession following a voir dire.