202400718 B1 - [2025] EWCA Crim 959

The appellant submits that a Mushtaq direction was required in this case and that the jury should have been directed that those parts of the prison calls which amounted to admissions against the appellant’s interest should be disregarded if the jury thought that they were or might have been the consequence of anything said or done which was likely to render them unreliable. This would have meant that if the jury found such circumstances did or might exist, they would have been required to disregard the admissions against interest entirely even if the jury were sure they were true.

We make two preliminary observations. The first goes to the source of the oppressive or improper conduct which is said to have caused this appellant to make his confessions. The cases in the Mushtaq line involve something said or done by the police or, at the limits, some figure in authority in relation to the appellant. So, in Mushtaq it was the police who were preventing the appellant from visiting his sick wife. In Roberts, the employer – an authority figure - had offered an incentive to the appellant to confess. In Al-Jaryan, it was argued that the police had failed to ensure an appropriate adult was present or to act on their knowledge of the accused’s mental health difficulties. By contrast this case involves no suggestion of police or any other authority figure bringing pressure to bear on the appellant. The appellant’s case is that he made the admissions in response to what two friends of his, Seiysha and Alisha, were saying to him. We doubt that an extension of Mushtaq to encompass confessions in these circumstances is justified. The public policy underpinning section 76(2), as explained in Mushtaq, is to provide a safeguard for an accused against oppression or improper means by a “person in authority” (noting the language in Ibrahim, cited in Mushtaq), typically the police. We are not persuaded that the definition of “confession” contained at section 82 of the 1984 Act, relied on by Mr Rasiah in his response to this point, assists him. That definition includes statements adverse to a person’s interest whether “made to a person in authority or not”, but it says nothing about the reasons why the person has confessed which is what section 76(2) and Mushtaq are concerned with.

The second observation is to note the striking feature of this case, which is the late entry of the request for a Mushtaq direction. The appellant had, by his legal team, agreed to the admission of the confessions contained in the police calls (albeit with some editing which his legal team considered beneficial to his case). We were shown no other case where an appellant had agreed the confessions were admissible and had then sought a Mushtaq direction. We are not at all sure that was a course properly open to the appellant in this case, particularly given that Mr Emlyn-Jones KC, so he informed us, did not know that the defence were intending to ask the judge for a Mushtaq direction until the late point in the trial, after the evidence was closed, when the defence applied for one. We take it that the judge did not know the defence’s intentions before that point either. However, Mr Emlyn-Jones did not suggest that the prosecution were prejudiced by the late arrival of the point and he very properly accepted that in another case there might be a good reason for raising the point late in the day (for example, if the accused had given unexpected evidence at trial about having been pressured by the police to give a confession). Having indicated our concern, we therefore simply move on to consider the merits of the appeal.

The appellant’s case is that statements he made against his own interest in the prison calls were untrue and were made to counter the suggestions, communicated to him by Seiysha and Alisha, that gang members thought that he was a “snitch” or a “pussy” because he had not joined in the attack on Bartolo. We agree with Mr Emlyn-Jones that the evidence simply does not support that case. That, in the end, is the simple answer to this appeal and is our reason for dismissing it.

The passages in the evidence where the appellant makes admissions against his interest are to be set in the context of lengthy evidence, much of which was consistent with his defence case. When asked in chief about how the things that Seiysha and Alisha had said to him made him feel, he said that those things made him feel annoyed, frustrated and angry; he said that the things he said to Seiysha and Alisha (inferentially, the admissions against interest) were in part because he wanted to “keep, like, my image”. When the most damaging parts of the prison calls were put to him in cross-examination, he said that they were lies but when asked why he had lied (this in the context of his admission that he was carrying a knife) he said: “…I was being called a pussy and things like that, and I was trying to up my credibility, and things like that.” In re-examination on the same passage he said he wanted to make his involvement seem more than it was, “to make myself not seem like a pussy”.

At least so far as the suggestion that he was a pussy was concerned, the appellant made a very clear case that he exaggerated his role (and lied in the various ways now highlighted) because he wanted to retain his street credibility. That is how the judge summed up his case to the jury and that was a fair reflection of the evidence the appellant gave. But to lie for that reason is not to lie due to oppression or in consequence of any form of improper treatment, which is what a Mushtaq direction is concerned with. Further, to lie for that reason is to lie by choice, as a matter of free will, and not for reasons which are external (see Goldenberg).

There is no evidence to support the proposition that the appellant lied out of fear for his own safety consequent on the allegation that he was a snitch. Whether he was or was not a snitch, in fact, is not the issue (even though Mr Emlyn-Jones submitted he was a snitch and could not complain about being called one); the central issue is whether he lied because of that accusation regardless of whether it was true. The appellant said in the prison calls that he had heard that there was a plan to attack him because he was a snitch. He was questioned about that in his evidence. In response he did not say that he had told lies because he was worried about an attack. He just said that this affected the way he communicated with Seiysha and Alisha. Mr Rasiah accepts that there is no evidence to support this aspect of his case but suggested that the jury could legitimately have drawn the inference that the appellant was scared that he would be targeted as a snitch and might have lied out of fear for that reason. He notes that the most damaging admissions were made towards the end of the period of these calls which he said supported the inference that the appellant’s fear and his response to it evolved over the period. We are unable to accept Mr Rasiah’s submissions on this point. If it was the appellant’s case that he had lied because he was in fear of violence as a result of being labelled a snitch, he needed to say that. He was not asked about that and he did not volunteer that. There is no evidence on which to base that submission.

We are not satisfied that there was evidence of anything said or done, which was external to the appellant, which was even arguably likely to render unreliable any confession made by him in consequence of it. The circumstances when a Mushtaq direction might have been required were not present.

The judge reminded the jury of the appellant’s explanations for the confessions made in the prison calls, summarising his case that those statements were made to protect his street credibility and to avoid being labelled a snitch or a pussy. He directed the jury to consider those explanations and decide whether they led the jury to regard what the appellant said as unreliable. If the jury concluded these statements were reliable, they should then consider whether they were true. The jury had already been directed on the burden and standard of proof and were well aware that they could only convict if they were sure that the appellant was guilty.

This was, in our judgment, a perfectly acceptable and adequate direction in relation to these passages in the prison calls.