202400718 B1 - [2025] EWCA Crim 959

In Mushtaq [2005] UKHL 25, the House of Lords considered what directions were necessary when confession evidence was put before the jury in circumstances where the defendant argued that the confession was obtained by oppression or improper means. In that case the appellant had confessed in a police interview. An application was made to exclude the confession from the trial on grounds that it was obtained by oppression under s 76(2)(a). The circumstances were that the appellant’s wife was critically ill in hospital and the appellant would visit her twice a day to feed her, because she could not feed herself and did not trust the hospital to provide food which complied with religious requirements. As a consequence of his arrest, the appellant had missed the first visit of that day and did not want his wife to be told of the reason for his absence in case it aggravated her condition. He said that he had confessed because the police had threatened to refuse bail and to exaggerate his involvement in the crime if he did not make full confessions in the absence of his solicitor. On a voir dire, the trial judge rejected the appellant’s account and ruled the confession admissible. The defendant did not give evidence at trial but prosecution witnesses were examined about the circumstances in which the appellant had confessed and the appellant’s case that the confession was obtained through oppression was put to them. The judge directed the jury that they should consider whether the confession was reliable and if the jury were not sure that the confession was true, they should disregard it. The question for the House of Lords was whether the judge should have gone further and directed the jury to disregard the confession if they thought that it was or may have been obtained by oppression, even if they thought it was true.

Lord Hutton was in the minority in the result, but he set out the background to section 76(2) in terms that cannot be disputed. He identified the principle reasons underlying the rule that a confession obtained by oppression should not be admitted in evidence (para 7):

“One reason, which has long been stated by the judges, is that where a confession is made as a result of oppression it may well be unreliable, because the confession may have been given, not with the intention of telling the truth, but from a desire to escape the oppression imposed on, or the harm threatened to, the suspect. A further reason, stated in more recent years, is that in a civilised society a person should not be compelled to incriminate himself, and a person in custody should not be subjected by the police to ill treatment or improper pressure in order to extract a confession: see Wong Kam-Ming v R. (1979) 69 Cr.App.R. 47 at 55, [1980] A.C. 247 at 261 and Lam Chi-Ming v R. (1991) 93 Cr.App.R. 358 at 363, [1991] 2 A.C. 212 at 220.”

He noted that the wording of section 76(2) was based on the 11^th report of the Criminal Law Revision Committee (1972) (Cmnd 4991) which had recommended a provision to exclude a confession which “was or may have been made in consequence of oppressive treatment of the accused or in consequence of any threat or inducement” (para 12).

Lord Rodger of Earlsferry (in the majority) noted that there was no evidence in this case that the appellant had given the confession as a result of oppression (para 36). He also noted that the requested direction was unlikely to make a difference in most cases because the judge would only have allowed a confession to be admitted in evidence if he was sure that it had not been obtained by oppression, and in most cases the jury were likely to reach the same view (para 42). He too identified the “importance that attaches in a civilised society to proper behaviour by the police towards those in their custody” (at para 45, citing Lord Griffiths in Lam Chi-Ming v R [1991] AC 212). He held that the jury were the ultimate arbiters of fact (para 46) and that:

“47.

…the logic of section 76(2) of PACE really requires that the jury should be directed that, if they consider that the confession was, or may have been, obtained by oppression or in consequence of anything said or done which was likely to render it unreliable, they should disregard it. In giving effect to the policy of Parliament in this way, your Lordships are merely reverting to the approach laid down by the Court of Criminal Appeal (Lord Goddard CJ, Byrne and Parker JJ) in R v. Blass [1953] 1 QB 680. Giving the judgment of the Court, Byrne J quoted the well-known words of Lord Sumner in Ibrahim v. R [1914] AC 599, 609:

‘It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The principle is as old as Lord Hale.’”

He held that the judge had misdirected the jury when he told them that they could rely on the confession if they were sure that it was true, even if it was or might have been made as a result of oppression or other improper circumstances (para 54). However, there was no evidence of oppression before the jury (paras 56-7) so that the direction sought was, on the facts, “unnecessary and unduly favourable to the appellant” (para 58) and the appeal was dismissed (para 59).

This, then, is the Mushtaq direction which is what the appellant argues should have been given by Garnham J in this case. By that direction, the jury are directed to disregard the confession if they conclude that it was or might have been obtained in consequence of anything said or done which was likely, in the circumstances existing at the time, to render it unreliable; it ceases in those circumstances to be a matter of weight and the jury is instead invited to disregard it entirely. (The direction is explained in Chapter 16, paras 8, 9 and 13(4), of the Crown Court Compendium, updated April 2025).

Mushtaq concerned improper means deployed by the police. But the direction can be required even in circumstances where the oppression or improper means are not the responsibility of the police but of some other authority figure. An example is provided by R v Roberts [2011] EWCA Crim 2974: in that case an appellant admitted stealing an I-pod from his employer in circumstances where the employer had said the matter would be sorted out internally and the police would not be called; the employer admitted that he had always intended to call the police. This Court (per Goldring LJ) held that “in consequence of such a plain inducement to confess, any confession was likely to be rendered unreliable” (para 18).

R v Al-Jaryan [2020] EWCA Crim 440 involved a combination of circumstances known to the police (including the accused’s mental health condition, the fact that he had not taken his medication that day, and that he was interviewed without an appropriate adult being present) and in that case, this Court (per Simler LJ) decided that a Mushtaq direction was warranted.

There are cases where confessions have been admitted, in circumstances where the appellant alleges some form of pressure or official misconduct, but this Court has held that a Mushtaq direction was not required. These include: