R v ASHFAQ AHMED MUSHTAQ [2002] EWCA Crim 1943

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT KINGSTON-UPON-THAMES
HIS HONOUR JUDGE BEHAR
[2002] EWCA Crim 1943Case No Case No: 200102468 X5Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
RASHFAQ AHMED MUSHTAQAppellant
Before
Lord Justice KayMr Justice HollandMr Justice Andrew SmithMr A Evans for the CrownMr L J McNulty for the AppellantDate 30 July 2002

Lord Justice Kay:

On

[1]the 23 March 2001 in the Crown Court at Kingston upon Thames before His Honour Judge Behar and a jury the appellant was convicted of conspiring to defraud (count 1) and possessing material designed or adapted for the making of a false instrument (count 3). On the 20 April 2001 he was sentenced to a total of 3 years 6 months imprisonment. He was acquitted by the jury of an alternative offence of possessing the material in count 3 with intent to make a false instrument (count 2).[2]He now appeals against conviction with the leave of the full court.[3]On the 23 September 1999 police officers searched a house at 32 Monega Road in East London. The house was being used as a “factory” for the production of counterfeit credit cards. Two men were associated with the address, Aftab Mirza and Saleem Mumtaz, and each was arrested. By the time of the appellant’s trial Mirza had pleaded guilty to, and Mumtaz had been convicted of offences relating to the manufacture and distribution of counterfeit credit cards. Among the material seized at 32 Monega Road, there were 13 items which bore the appellant’s fingerprints.[4]On 25 May 2000 police officers searched the appellant’s home. Various items were recovered including an incomplete counterfeit credit card.[5]When interviewed by the police the appellant gave a number of answers which amounted to a confession to count 1, admitting that he had played a minor part in the conspiracy to manufacture and distribute counterfeit cards. In respect of the counterfeit card found in his jacket, which was the subject of counts 2 and 3, he said that he had found it in the street by chance and that it was not a product of the counterfeiting operation.[6]The prosecution case on count 1 was that the applicant had made unequivocal and genuine admissions as to his involvement, and this was supported by the presence of his fingerprints on items at 32 Monega Road. In respect of counts 2 and 3 the prosecution case was that the applicant had not put forward any lawful reason for his possession of the card, and the obvious inference was that he intended that it should be developed into a complete counterfeit.[7]The defence to count 1 was that the appellant’s confession had been extracted by oppression on the part of the police and was a false confession. In respect of counts 2 and 3, the defence submitted that the only evidence of the appellant’s dealing with the card came from his interview and was thus equally unreliable. Further there was no evidence that the counterfeiting of the card was to be completed.[8]During the evidence, application was made to the judge to exclude the appellant’s answers to police questions during the search of his home and also those answers which he gave when interviewed at the police station. It was submitted that the admissions made during the search and at the police station were obtained as the result of oppression by police officers. Reliance was placed upon Sections 76(2) and 78 of the Police and Criminal Evidence Act 1984. It was submitted that there was a breach of the requirement under Section 30(1) of the Act that a suspect should be taken to a police station as soon after arrest as was practicable. It was contended that the questioning at the house amounted to an interview, the conduct of which breached Code C11.1 of the Codes of Practice and further that the officers were also in breach of Code C11.13 by failing to record in writing an unsolicited comment alleged to have been made by the appellant. In respect of the interview at the police station, it was submitted that there were breaches of Codes C6.1 and C6.4 in that the officers failed to inform the appellant of his right to consult a solicitor and attempted to dissuade him from seeking legal advice. It was submitted that there were breaches of Codes E3.5 and E4.1 in that the officers failed to tape record the entirety of the interview at the police station and in particular they failed to commence the tape recording as soon as the appellant was brought into the interview room.[9]A voire dire was held in which two officers gave evidence and denied any wrong doing. The first 44 minutes of the tape recorded interview were played and the transcripts were before the court. The appellant gave evidence in the voire dire. He stated that in May 2000 his wife was critically ill with tubercular meningitis which had caused blindness. This was supported by a hospital discharge summary dated the 19 th July. It was his practice to visit the hospital every morning and evening. He alleged that one officer told him that if he did not make a confession, he would not be able to see his wife. The officer told him that the police would tell the court that he was “Mr Big” and would ensure that he received a long sentence. The appellant said that he wanted to have a solicitor with him at the police station, as he had when arrested on a previous occasion, but the officer had told him not to request one. During the interview both officers shook their heads and waved their hands to indicate that he should say that he did not want legal representation. They then mouthed the answers that he should give, and during breaks in the interview they told him that the interview was going well and that he would be allowed to see his wife. The appellant’s solicitor, Ishma Ramdott, gave evidence about a conversation with one of the officers on 1 June in which the officer told him that his client was guilty.[10]In respect of the failure to take the appellant to the police station as soon as he was arrested, the judge ruled that the officer was entitled to take the view that the appellant should be present while his house was searched. This meant that it was not practicable within the meaning of Section 30(1) of the Act to take him to the police station. Alternatively the presence of the appellant at the house was necessary in order to carry out investigations within the meaning of Section 30(10) of the Act. Alternatively, if there was a breach of the Section, it was not a serious one.[11]Ruling on the admissibility of the answers given by the appellant to questioning at the house, the judge found that the questioning did amount to an interview. There was a breach of the Codes of Practice but it was not a very serious one and did not stem from deliberate misconduct on the part of the officers. The questioning was not oppressive and the evidence did not fall to be excluded under Section 76(2) of the Act. However some of the appellant’s comments were prejudicial and as a matter of fairness all evidence of the conversation at the house would be excluded under Section 78 of the Act. Since domestic law offered this remedy, the judge found it unnecessary to consider what the position would have been under the European Convention on Human Rights had this remedy not been available.[12]The judge found that there was a breach of Code C11.13 in that the officers did not record in writing an alleged comment made by the appellant that a man called Patel had supplied the conspirators with blank credit cards. The breach was not serious and was not indicative of bad faith on the part of the officers.[13]The judge found that the requirement that the appellant be informed of his right to legal representation was complied with and nothing was said or done with the intention of dissuading the appellant from exercising that right. There was accordingly no breach of Code C6.1 and C6.4.[14]In respect of the interview at the police station there was a fifteen minute gap between the appellant being released from his cell and the commencement of the tape recording. The officers could not recall what had happened in that period but there were many possible innocent explanations for the delay. On the evidence the judge rejected the appellant’s account as to why there was a delay and was satisfied that there was no breach of Code E4.1. The whole of the interview was tape recorded so there was no breach of Code E3.5.[15]The judge found that both officers were convincing witnesses but the appellant was an unconvincing witness. The interview record showed that the officers were acutely sensitive to the fact that the appellant’s wife was ill and that he was not legally represented. There was no dispute that the appellant had been allowed to telephone the hospital to enquire about his wife’s condition after he was arrested, and he had the opportunity to call his solicitor from the police station. The judge accepted that one officer did tell Mr Ramdott, the solicitor, that the appellant was guilty. That may have been an unwise thing to say but it did not show that the officer had acted oppressively at an earlier stage. No complaint was made about the officer’s conduct until the defence statement was served several months later. The judge was satisfied that the appellant voluntarily chose to be interviewed without a solicitor present, and that the confessions in interview were not obtained by oppression or in consequence of anything said or done which was likely to render them unreliable under Section 76 of the Act. He accordingly concluded that the interview should be admitted in evidence.[16]The police officers gave evidence to the jury of the interview and the allegations of oppression were again put to them.[17]The defendant exercised his right not to give evidence to the jury and thus there was no evidence before the jury to support the allegation about which the officers had been cross-examined.[18]When the judge came to sum up the case to the jury, he gave them directions concerning the confessions made in interview. His directions were modelled on, and followed closely, the directions suggested by the Judicial Studies Board in its Specimen Directions.[19]He made clear that the confession was “absolutely central and crucial to the case”. He reminded the jury that the appellant’s case was that although he made the confessions, they were not true. He correctly directed them that they had to ask themselves whether they were sure that the confession was true adding “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.” He told them that they should decide whether it was voluntary and whether it might have been made as a result of oppression or other improper circumstances. He then referred to the cross-examination of the police officers making “very serious allegations of oppression and impropriety.” He reminded the jury that the allegations were denied and that no evidence had been called to substantiate the allegations. He concluded: “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 has or may have been made as a result of oppression or other improper circumstances”.[20]It is the judge’s direction as to the confession that leads to the ground of appeal upon which leave to appeal was granted. The ground contends that the final passages quoted in these preceding paragraphs was in breach of Article 6 of the European Convention on Human Rights. It is contended that the judge should have directed the jury that unless they were sure that the confession had not been obtained as a result of oppression or other improper circumstances, they should disregard it.[21]Mr McNulty on behalf of the appellant has referred the court to Saunders v UK (1996) 23 EHRR 313, where the European Court of Human Rights said at paragraph 68:
“The Court recalls that, although not specifically mentioned in Article 6 of the Convention (art. 6). The right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6 (art. 6). Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6 (art. 6) (see the above-mentioned Funke judgment, p. 22. Para 44). The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence contained in Article 6 para 2 of the Convention (art. 6-2).”
[22]Counsel argues that the jury is a public authority within the definition of a public authority contained in Section 6 of the Human Rights Act 1998. Accordingly it is submitted that to allow the jury to rely on evidence which they find as a fact to have been obtained through methods of coercion or oppression in defiance of the will of the accused is, following the guidance in Saunders v UK, to invite them to act in breach of Article 6.[23]It is further contended that since the trial may involve a breach of the appellant’s Article 6 rights, the court should remedy the situation by allowing his appeal, declaring the resulting conviction to be unsafe.[24]On behalf of the prosecution, Mr Evans, contends that the right not to incriminate oneself, being part of the right to a fair trial under Article 6, is fully recognised by the national laws of the United Kingdom. Express statutory provisions, Sections 76 and 78 of the Police and Criminal Evidence Act 1978, provide a proper procedure for the court to protect such rights. Section 76 requires the prosecution to establish to the criminal standard that a confession was not obtained by oppression or in circumstances that would render it inadmissible before the evidence can be admitted at trial. That decision is one for the judge so that if the evidence is ruled to be inadmissible the jury will not hear anything about it. Additionally Section 78 gives the judge power to exclude any evidence that may have an adverse effect upon the fairness of the trial proceedings. Thus a mechanism for ensuring that a defendant’s Article 6 rights are protected is an integral part of the trial process.[25]Support for the proposition that such procedures fully recognise a defendant’s rights, it is suggested, can be found in G v United Kingdom 9370/81 35 DR 75 (1983), where the European Commission of Human Rights concluded at page 80: “..., the Commission finds that the system of guarantees for evaluating the admissibility of challenged evidence, the probative value of which was subsequently and apparently examined by a jury, was such as to provide the applicant, who was represented by counsel throughout the proceedings, with a fair trial within the meaning of Article 6(1) of the Convention”.[26]Mr Evans submits that the jury is not a “public authority” or a “court” within the definition provided by Section 6 of the Human Rights Act 1998. Accordingly it was not the jury’s function to protect the appellant’s rights under the convention; that responsibility lay on the court collectively, and in this instance on the judge. The jury’s role was limited to determining the facts on the evidence which was before them and on those facts reaching their verdicts in accordance with the judge’s directions.[27]The issue of the weight to be given to the evidence of the confession, of necessity, required, as the judge’s direction made clear, an examination of the circumstances in which it was made. The jury had to consider whether they could rely upon its truth. The direction made this clear, and cannot be criticised on this account.[28]We, of course, accept that the trial process must provide adequate safeguards to ensure that a defendant’s Article 6 rights are preserved. Clearly, the right not to be made to incriminate oneself by the making of confessions, true or false, as a result of oppressive conduct by the authorities or by other circumstances of a similar kind is, as was made clear in Saunders v UK , an important part of those rights. The issue we have to determine is whether the procedures provided by domestic law provide a proper measure of protection for those rights or whether the Convention requires further safeguards, and in particular requires that a jury should inquire into allegations of oppression and disregard evidence if they themselves are not satisfied that a confession was not obtained improperly.[29]It is perhaps desirable first to summarise domestic law as to this matter. It is unnecessary to go into the history of the development in great detail but prior to the decision of the Court of Appeal in Burgess [1968] 2QB 112 there was an apparent conflict of approach between the English Authorities (see e.g. Murray [1951] 1 KB 391) and a decision of the Privy Council ( Chan Wei Keung v R [1967] 2AC 160 ) supporting the approach of Commonwealth Courts. In Burgess the Court of Appeal accepted that the latter approach was the proper one and the decision of the court given by Lord Parker CJ was expressed in clear terms at page 117G as:
“The position now is that the admissibility is a matter for the judge; that it is thereafter unnecessary to leave the same matters to the jury; but that the jury should be told that what weight they attach to the confession depends on all the circumstances in which it was taken, and that it is their right to give such weight to it as they think fit.”
[30]The Judicial Studies Board model direction, as used by the judge in this case, is clearly intended to give effect to that approach. We will return later to the question whether its language is as helpful in explaining the jury’s function as it might be.[31]The method adopted by domestic law of providing different functions for the judge and the jury in relation to disputed confessions is in our judgment one with significant advantages for ensuring that justice is done. The obvious one is that it removes from the jury what may be a difficult task of disregarding a confession obtained by oppression where it may be patently obvious from its content that it is true and so avoids the risk they might not fully and properly put it out of their minds. The system provides that unless the prosecution can satisfy the judge to the high criminal standard of proof that it was not obtained by oppression, the jury never hear a word of the confession.[32]There are other practical advantages to the separate functions. Evidence highly relevant to the issue of voluntariness may be particularly prejudicial to an accused person. Because the jury do not hear the evidence on the voir dire, matters of importance to the issue being examined may the more readily be expressed because there is no fear that the jury will be affected by them. By way of example, the previous experience of an accused in police stations may have a considerable bearing upon how he would react to a given situation in custody since someone with no such experience might react differently. Issues of this kind, potentially of great relevance to the admissibility of the evidence, can be explored before the judge alone.[33]The division of functions also, we think, complies with the requirement of the Convention of an adequate safeguard against the prosecution deploying against an accused person evidence which was obtained from him by oppression. A question whether evidence was so obtained is to be determined by a judge, without the jury being present. Not only does this, as we have said, allow a defendant to present such objections without being inhibited by the presence of the jury, the tribunal who are to determine the factual questions on the charges that he faces. It also means that the decision as to whether the convention rights have been protected is given in a reasoned judgment, which may therefore be subjected to scrutiny by the appellate court: see Murray v UK (1996) 22 EHRR 29 at paragraph 51.[34]The argument advanced by Mr McNulty is based round his submission that the jury is a separate public authority and accordingly it has a distinct and separate duty from the judge to protect the appellant’s rights under the Convention. We do not accept this proposition. In a criminal trial, it is the court acting collectively that has the shared responsibility of ensuring a fair trial. The judge and the jury are, by the system employed, given distinct functions to perform which will collectively protect the rights of the person standing trial. In fulfilling their distinct functions, both the judge and the jury, must recognise the need to ensure that the accused receives a fair trial but that does not require the jury to take upon themselves functions that the law properly entrusts to the judge. Provided each fulfils its role the accused will receive a fair trial. The question whether the jury is a “public authority” is, it seems to us, an arid one because on no view is the jury a public authority charged with the function of determining whether (in general) evidence is admissible or (more specifically) a confession has been obtained improperly or in contravention of the Convention. However, in view of the definition of “public authority” in the Act as including a court, we consider that the jury, a constituent of the court, is not itself within the definition.[35]No criticism can be made of the way in which the judge determined the questions surrounding the allegations of oppression. The evidence subsequently led before the jury differed from that put before the judge and the only issue for the jury to resolve was whether the confession was reliable or not. There is no reason to doubt that they considered that issue and perhaps not surprisingly since no evidence in support of the allegations was called before them, they concluded that the confession was safe to rely upon.[36]For these reasons we can see no basis for thinking that the convictions returned by the jury were unsafe.[37]It is perhaps desirable, however, to look at the wording of the specimen direction. The direction at one point says:
“ You should decide, whether it was made voluntarily, or has or may have been made as a result of oppression or other improper circumstances.”
[38]For our part, we do not consider that a jury do have to “decide” these matters. There may be cases where the jury are satisfied that the information contained in the confession could only have come from the person responsible for the crime. In such circumstances the jury would no doubt conclude that the statement was true without any necessity to explore the issues as to how it came to be made. On the other hand, there will be cases in which a jury will reject a confession as inherently unreliable evidence without considering the circumstances in which it came to be made. In other cases, the jury might wish to consider whether a confession was obtained without oppression or pressure in order to decide whether or not it provides reliable evidence. It is for the jury to decide how to deal with the particular case and therefore it seems to us undesirable to give a direction that they “should decide” something where the proper fulfilling of their role may not require them to decide that matter at all.[39]The final sentence of the suggested direction reads:
“If, on the other hand, you are sure that it is true you may rely on it [even if it has or may have been made as a result of oppression or other improper circumstances]”
. We consider that the same criticism can be made of the passage in square brackets. Whilst the passage accurately reflects the position in law as we have already made clear, it is not immediately obvious why this further reference to oppression and improper circumstances is necessary, and it does run the risk of the sort of criticism that has been made of it in this case.[40]We would invite those responsible for the specimen directions to look again at this direction and see whether by redrafting the jury may not be better assisted as to the approach they have to adopt to these issues.[41]In a case such as this, when the confession was the crucial evidence against the appellant and where there was nothing contained within the content of the statement that might have led the jury to conclude that even though the officers may have behaved oppressively, the statement was nonetheless true, the only basis upon which the jury could possibly have concluded that the appellant was guilty was that they were sure that the allegations made against the police were false. Thus even if we had considered that there was a fault in the direction, we would have found it difficult to conclude that the verdict was unsafe. However, as we have made clear, we are satisfied that the direction does not offend against Article 6 and this appeal is dismissed.

Cited in 1 later judgment