Extract
Regina v.Mushtaq (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) (HTML version) (2005)
HOUSE OF LORDSSESSION 2004-05[2005] UKHL 25on appeal from: [2002] EWCA Crim 1943OPINIONSOF THE LORDS OF APPEALFOR JUDGMENT IN THE CAUSEReginav.Mushtaq (Appellant) (On Appeal from the Court of Appeal (Criminal Division))ONTHURSDAY 21 APRIL 2005The Appellate Committee comprised:Lord SteynLord HuttonLord Phillips of Worth MatraversLord Rodger of EarlsferryLord CarswellHOUSE OF LORDSOPINIONS OF THE LORDS OF APPEAL FOR JUDGMENTIN THE CAUSERegina v. Mushtaq (Appellant) (On Appeal from the Court of Appeal (Criminal Division))[2005] UKHL 25LORD STEYNMy Lords,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.LORD HUTTONMy Lords,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 [1951] 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...See the full content of this document