R v Mushtaq

Factual and Procedural Background

On 23 March 2001, in the Crown Court at Kingston upon Thames before Judge Behar and a jury, the Appellant was convicted of conspiring to defraud (count 1) and possessing material designed or adapted for making a false instrument (count 3). The Appellant was acquitted of an alternative offence of possessing the material with intent to make a false instrument (count 2). On 20 April 2001, the Appellant was sentenced to 3 years and 6 months imprisonment. The Appellant now appeals against conviction with the leave of the full court.

On 23 September 1999, police searched a house at 32 Monega Road in East London, used as a factory for producing counterfeit credit cards. Two men associated with the address were arrested and later convicted or pleaded guilty to related offences. Among the seized items, 13 bore the Appellant's fingerprints. On 25 May 2000, police searched the Appellant's home and recovered various items, including an incomplete counterfeit credit card.

During police interviews, the Appellant made admissions amounting to a confession to count 1, admitting a minor part in the conspiracy. Regarding the counterfeit card, the Appellant claimed to have found it by chance and denied involvement in its manufacture. The prosecution argued the admissions were genuine and supported by fingerprint evidence, while the defence contended the confession was false and obtained by oppression, challenging the reliability of the evidence related to counts 2 and 3.

Applications were made to exclude the Appellant’s statements on grounds of oppression and breaches of the Police and Criminal Evidence Act 1984 (PACE) and related Codes of Practice. A voire dire was held where evidence was heard from police officers and the Appellant, who alleged oppressive conduct during interview, including improper discouragement from seeking legal advice.

The trial judge ruled on admissibility, finding some breaches of Codes of Practice but no serious misconduct or oppression. The judge admitted the interview evidence while excluding certain prejudicial comments. The Appellant exercised the right not to testify before the jury. The judge gave directions to the jury on how to consider the confession, emphasizing its centrality and instructing them to assess its truth and voluntariness, including consideration of any oppression allegations.

Legal Issues Presented

1. Whether the jury directions concerning the confession were compatible with Article 6 of the European Convention on Human Rights (ECHR), specifically regarding the treatment of confessions allegedly obtained through oppression or improper circumstances.
2. Whether the jury should have been directed to disregard the confession unless they were sure it was not obtained by oppression or improper conduct.
3. The extent to which the jury constitutes a public authority under Section 6 of the Human Rights Act 1998 with a duty to protect the Appellant’s Convention rights.
4. The adequacy of domestic law procedures under PACE for protecting the right not to incriminate oneself and ensuring a fair trial under Article 6 ECHR.

Arguments of the Parties

Appellant's Arguments

• The jury direction was flawed and breached Article 6 ECHR by allowing the jury to rely on a confession even if it might have been obtained by oppression or improper circumstances.
• The jury should have been directed to disregard the confession unless they were sure it was not obtained improperly.
• The jury is a public authority under the Human Rights Act 1998 and must independently safeguard the Appellant’s Convention rights.
• The conviction should be declared unsafe due to the breach of Article 6 rights.

Prosecution's Arguments

• Domestic law fully recognises the right not to incriminate oneself and provides adequate safeguards through Sections 76 and 78 of PACE.
• The judge, not the jury, determines admissibility of confessions and ensures protection of Convention rights.
• The jury’s role is limited to assessing the facts and the reliability of evidence admitted by the judge.
• The jury is not a public authority within the meaning of the Human Rights Act 1998 for the purpose of protecting Convention rights.
• Procedures under domestic law comply with the requirements of Article 6 and provide fair trial guarantees.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the procedural and substantive safeguards provided by domestic law regarding confessions and their admissibility. It emphasised the division of functions between the judge and the jury: the judge determines whether a confession was obtained by oppression or in breach of the law and decides admissibility accordingly; the jury then assesses the reliability and weight of the confession as part of the evidence.

The court rejected the argument that the jury is a public authority under the Human Rights Act 1998 with a separate duty to protect Convention rights, explaining that the court as a whole (judge and jury) collectively ensures a fair trial. The jury’s role is fact-finding, not determining admissibility or Convention compliance of evidence.

The court found the judge’s directions to the jury, based on Judicial Studies Board specimen directions, appropriate in explaining the jury’s role in assessing the confession’s truth and voluntariness. Although the court acknowledged some imperfections in the wording of the directions, it concluded that these did not amount to a breach of Article 6.

The court highlighted the advantages of the domestic law approach, including preventing the jury from having to disregard true confessions obtained by oppression and allowing sensitive evidence to be considered by the judge alone. It also noted that the judge’s reasoned rulings on admissibility allow for appellate review, enhancing fairness.

Ultimately, the court was satisfied that the Appellant’s confession was admitted properly, that the jury was properly directed, and that the convictions were safe.

Holding and Implications

DISMISSED

The court dismissed the Appellant’s appeal, holding that the jury directions did not violate Article 6 of the European Convention on Human Rights and that the domestic procedures under the Police and Criminal Evidence Act 1984 provided adequate safeguards to protect the Appellant’s rights. The decision confirms the established division of roles between judge and jury regarding the admissibility and evaluation of confessions. No new precedent was set; the ruling affirms the safety of the convictions and the sufficiency of existing legal protections in similar cases.