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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Mushtaq, R v  EWCA Crim 1943 (30th July 2002)
Cite as:  EWCA Crim 1943
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT KINGSTON-UPON-THAMES
HIS HONOUR JUDGE BEHAR
London, WC2A 2LL
B e f o r e :
MR JUSTICE HOLLAND
MR JUSTICE ANDREW SMITH
|- and -|
|ASHFAQ AHMED MUSHTAQ||Appellant|
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr L J McNulty instructed for the Appellant
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Kay:
“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”.
“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).”
“..., 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”.
“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.”
“ You should decide, whether it was made voluntarily, or has or may have been made as a result of oppression or other improper circumstances.”
“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.