R v Mushtaq (Ashfaq Ahmed)

JurisdictionUK Non-devolved
JudgeLORD STEYN,LORD HUTTON,LORD PHILLIPS OF WORTH MATRAVERS,LORD RODGER OF EARLSFERRY,LORD CARSWELL
Judgment Date21 April 2005
Neutral Citation[2005] UKHL 25
CourtHouse of Lords
Date21 April 2005
Regina
and
Mushtaq
(Appellant)

(On Appeal from the Court of Appeal (Criminal Division))

[2005] UKHL 25

The Appellate Committee comprised:

Lord Steyn

Lord Hutton

Lord Phillips of Worth Matravers

Lord Rodger of Earlsferry

Lord Carswell

HOUSE OF LORDS

LORD STEYN

My 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 HUTTON

My 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 absence of the jury and to decide on the admissibility of the confession; and, since he could find nothing in the evidence to cause him to think that the confession had been improperly obtained, to admit it. But its weight and value were matters for the jury, and in considering such matters they were entitled to take into account the opinion which they had formed on the way in which it had been obtained. [Counsel for the defence] was perfectly entitled to cross-examine the police again in the presence of the jury as to the circumstances in which the confession was obtained, and to try again to show that it had been obtained by means of a promise or favour. If he could have persuaded the jury of that, he was entitled to say to them: 'You ought to disregard the confession because its weight is a matter for you' …

It has always, as far as this court is aware, been the right of counsel for the defence to cross-examine again the witnesses who have already given evidence in the absence of the jury; for if he can induce the jury to think that the confession was obtained through some threat or promise, its value will be enormously weakened. The weight and value of the evidence are always matters for the jury."

4

In the present case the material part of the direction by the judge to the jury was as follows:

"Now I come on to deal with the question of a confession which is absolutely central and crucial to this case. In the course of the tape recorded interviews; and you heard part of them played, the defendant made statements which you may think were clearly adverse to his case. In short, he admitted, you may think, that he played a part in the conspiracy alleged and that he was paid to do so and in law; as in ordinary English language, an acknowledge of guilt of that kind is a confession. The defendant's case is that although he made the confession, it is not true and in deciding whether you can safely rely upon that confession you have to decide two matters. Firstly, did the defendant, in fact, make the confession? Well, that is not in issue in this case, is it? That he made it? So there is no difficulty about that. But if you are sure that he did make a confession, then you go on to consider the second question which you may think is the important one, are you sure that the confession is true and when deciding this you should have regard to all the circumstances in which it came to be made and consider whether there were any circumstances which might cast doubt upon its reliability. You should decide whether it should be made voluntary (sic) or was or may have been made as a result of oppression or other improper circumstances. Now it is right to say that a number of matters were put to Mr Whittick and Mr Finnegan which amounted, you may think, to very serious allegations of oppression and impropriety, those allegations were all denied and no evidence whatsoever has been called to support or to substantial that (sic) allegations. Nevertheless, it is for you to assess what weight should be given to the confession. If you are not sure for whatever reason that the confession is true, you must disregard it. If, on the other hand, you are sure that it is true you may rely on it even if it was or may have been made as a result of oppression or other improper circumstances."

This part of the direction was based on a model direction suggested by the Judicial Studies Board and the last three sentences were taken verbatim from that model.

5

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, who has ruled pursuant to Section 76(2) of the Police and Criminal Evidence Act 1984 that evidence of an alleged confession has not been obtained by oppression, nor has it been obtained in consequence of anything said or done which is likely to render unreliable any confession, is required to direct the jury, if they conclude that the alleged confession may have been so obtained, they must disregard it."

6

Mr McNulty's submission is that where the defendant makes the case that his confession was obtained by oppression or other improper conduct, then the judge, who will already have ruled on the voir dire that the confession is admissible, must direct the jury:

"It has been suggested on the defendant's behalf that his confession in this case was compelled as a result of improper compulsion exerted upon him by the investigating officers. You should consider whether it was so obtained and you should disregard it unless you are sure that it was not made as a result of improper compulsion."

Mr McNulty's submission is based on article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms which provides:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

7

Before considering Mr McNulty's submission it is relevant to consider some of the common law principles relating to the admissibility of a confession and its consideration by a jury. It is clear that there are two principal reasons underlying the rule that a confession obtained by oppression should not be admitted in evidence. One reason, which has long been stated by the judges, is that where a confession is made as a result of oppression it may well be unreliable, because the confession may have been given, not with the intention of telling the truth, but from a desire to escape the oppression imposed on, or the harm threatened to, the suspect. A further reason, stated in more recent years, is that in a civilised society a person should not be compelled to incriminate himself, and a person in custody should not be subjected by the police to illtreatment or improper pressure in order to extract a confession: see Wong Kam-ming v The Queen [1980] AC 247, 261 and Lam Chi-ming v The Queen [1991] 2 AC 212, 220 E-G.

8

These two reasons also underlie the decision of the European Court of Human Rights in Saunders v The United...

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