Regina v Mushtaq: HL 21 Apr 2005

The defendant was convicted of fraud charges. He sought to have excluded statements made in interview on the basis that they had been obtained by oppressive behaviour by the police. His wife was very seriously ill in hospital and he had made the statement so that he could get out to see her. The police knew his circumstances, but bail was refused. The statement was admitted and the circumstances discussed before the jury.
Held: The appeal failed. In the absence of evidence from the defendant and the denials by the officers there was not actually any evidence of oppression: ‘in this case there was no evidence whatever of oppression, or of any other improper means, for the prosecution to disprove or for the jury to consider. The direction to the jury as to what they might do if they found that the confession had been obtained by oppression or any other improper means was, accordingly, unnecessary and unduly favourable to the appellant. In those circumstances, the fact that the judge did not go further in his direction cannot possibly affect the fairness of the appellant’s trial or the safety of his conviction.’ However even though the judge had ruled that a statement was admissible in law, he must still leave to the jury the question of fact as to whether it had been obtainedby oppression, and that therefore they were entitled to disregard it.
Lord Carswell said that oppression would be constituted by ‘questioning which by its nature, duration or other circumstances (including the fact of custody) excites hopes (such as hope of release) or fears, or so affects the mind of the subject that his will crumbles and he speaks when otherwise he would have stayed silent.’
Lord Steyn, Lord Hutton, Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Lord Carswell
[2005] UKHL 25, Times 28-Apr-2005, [2005] 1 WLR 1513
Bailii, House of Lords
Police and Criminal Evidence Act 1984 76(2), European Convention on Human Rights 6
England and Wales
Citing:
CitedRex v Murray 1951
Where the judge decides that the confession is to be given in evidence, if the defendant’s counsel wishes, the circumstances in which it was obtained will again be explored in evidence before the jury so that they can decide what weight or value to . .
CitedWong Kam-Ming v The Queen PC 20-Dec-1978
The voir dire system allows a defendant to give his evidence on the limited issues surrounding the circumstances under which his statement was made as to the admissibility of the confession, without infringing his right to elect not to give evidence . .
CitedChitambala v The Queen 1961
Clayden ACJ said: ‘In any criminal trial the accused has the right to elect not to give evidence at the conclusion of the Crown case. To regard evidence given by him on the question of the admissibility as evidence in the trial itself would mean . .
CitedIbrahim v The King PC 6-Mar-1914
(Hong Kong) The defendant was an Afghan subject with the British Army in Hong Kong. He was accused of murder. Having accepted the protection of the British Armed forces, he became subject to their laws. In custody, he was asked about the offence by . .
CitedRegina v Bass CCA 1953
The court considered how to deal with the admission of a statement where the defendant contested its admissibility. Here the defendant said he had not been cautioned before the interview.
Held: It was within the discretion of the judge to . .
CitedHui Chi-ming v The Queen PC 5-Aug-1991
(Hong Kong) The defendant was charged with aiding and abetting a murder. A, carrying a length of water pipe and accompanied by the defendant and four other youths, seized a man and A hit him with the pipe, causing injuries from which he died. No . .
CitedRegina v Sat-Bhambra CACD 1989
The defendant was accused of importing heroin. He challenged use of his recorded interviews saying he was suffering hypoglycaemia from his diabetes at the time. The judge excluded later interviews for this reason, but the defendant challenged the . .
CitedChalmers v HM Advocate HCJ 1954
Where a defendant failed to prevent a statement being admitted in evidence, and sought to be able to challenge it again before the jury, this was a situation where logic must yield, since the jury cannot be asked to accept as an item of evidence a . .
CitedG v United Kingdom ECHR 1983
The applicant went to a police station along with his girlfriend who was to be interviewed on an unspecified matter. He was arrested and questioned about a burglary. He made a confession, but he claimed that he had done so because the police had . .
CitedSaunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .
CitedMurray v The United Kingdom ECHR 8-Feb-1996
The applicant had been denied legal advice for 48 hours after he had been taken into custody.
Held: There had been a violation of article 6(1) read with article 6(3)(c). However, it was not a breach of human rights to draw inferences from the . .
CitedFunke v France ECHR 25-Feb-1993
M. Funke successfully challenged his conviction for failing to provide documents which the customs authorities had demanded of him, on the grounds that his rights under Article 6 had been infringed: ‘The Court notes that the customs secured Mr. . .
CitedParochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
CitedRegina v Ward (Judith) CACD 15-Jul-1992
The defendant had been wrongly convicted of IRA bombings. She said that the prosecution had failed to disclose evidence.
Held: The prosecution’s forensic scientists are under a common law duty to disclose to the defence anything they may . .
CitedRegina v Prager CACD 1972
The judge’s discretion to exclude a statement on the ground that its admission would be unfair is a matter of degree, but the first and principal decision is whether the prosecution has proved that it was made voluntarily. The court discussed what . .
CitedBartlett v Smith 1843
‘Where a question arises as to the admissibility of evidence, the facts upon which its admissibility depends are to be determined by the judge, and not by the jury. If the opposite course were adopted, it would be equivalent to leaving it to the . .
CitedChan Wei Keung v The Queen PC 7-Nov-1966
(Hong Kong) The defendant appealed from his conviction for murder. He complained as to the adequacy of the judge’s directions to the jury.
Held: On a voir dire as to the admissibility of a defendant’s challenged statement, the prosecution . .

Cited by:
CitedA and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
CitedFoster and Another v The Queen PC 23-Jan-2007
(Barbados) The appellants had been convicted under the felony murder rule, before its abolition in Barbados in 1994. . .
CitedAli Hussein v Secretary of State for Defence Admn 1-Feb-2013
The claimant sought to challenge the legality of techniques of interrogation intended to be used by forces members detaining person captured in Afghanistan. He had himself been mistreated by such officers in Iraq. The defendant denied he had . .
CitedWilliams v The Queen PC 25-Apr-2006
PC Jamaica – the appellant had been twelve when convicted on his own confession of murder. He said that the statement after oppression. The statement had been challenged but admitted without following the . .

These lists may be incomplete.
Updated: 23 January 2021; Ref: scu.224323