A slippery slope

What is a reasonable doubt? Judges and juries may disagree over whether the prosecution has established beyond reasonable doubt that a confession was obtained voluntarily.

If the judge thinks the prosecution has proved that the confession was voluntary, then it is admissible. The jury (or, perhaps, any individual juror) may, however, not think the prosecution has proved the voluntariness of the confession beyond reasonable doubt. Where that is so, the jury (or, perhaps, the juror) must ignore the confession. This was established in R v Mushtaq [2005] UKHL 22 (21 April 2005), in a decision departing from the law as it had been understood to be (Chan Wei Keung v R [1967] 2 AC 160, and disagreeing with Basto v R (1954) 91 CLR 628 HCA).

The Law Lords did not consider the difficulties suggested by the phrases I have put in brackets: does the jury act as a whole in determining the voluntariness of the confession, so that it is only voluntary if all jurors agree that the prosecution has proved that beyond reasonable doubt? Or, is it a matter for each juror individually to determine when assessing what evidence he accepts and what he rejects?

Normally, jurors are told to act as individual fact-finders; the only requirement for unanimity attaches to the verdict they reach. This suggests that some jurors might rely on a confession as evidence of guilt, because they are satisfied that it was made voluntarily and is in other respects reliable, whereas other jurors may have to reach a conclusion without using the confession if they have a reasonable doubt about its having been voluntary.

One would have thought that it is correct to regard the jurors as individuals on all matters except the verdict, although the Supreme Court of New Zealand has, without directly addressing the point, apparently regarded the jurors as having to be unanimous on whether the basis for a statutory presumption to operate has been proved: Siloata v R 16/12/04, SC CRI 8/2004.

Apart from this uncertainty, which will probably be resolved in favour of the jurors-as-individuals approach, Mushtaq carries the theoretical danger that weak judges will tend to ignore their own doubts about the voluntariness of confessions, knowing that the jurors will have to make up their own minds about that.

The rationale of Mushtaq is based on the right to a fair trial, and the associated right against self-incrimination, and the role of the jurors as the ultimate arbiters of fact (per Lord Rodger at para 46, 49, 54, Lords Steyn, and Phillips agreeing; and per Lord Carswell at para 73; Lord Hutton dissented on the law, holding that the traditional distinction between the functions of judge and jury, admissibility and weight, applied). Given that potentially broad base, one might wonder whether the admissibility consequences of other forms of official misconduct, for example wrongful search procedures, are going to be left to juries. Why should the defence be prevented, after an unsuccessful voir dire on the issue of unreasonability of search and the application of Shaheed balancing, from raising the same matters with the jury as the basis for a submission that they should ignore the evidence that the judge has ruled admissible?

To prevent that, emphasis would have to be given to the special responsibility of the judiciary to oversee the propriety of police conduct and to prevent abuse of process, but the majority in Mushtaq did not rely on that point. The 4 to 1 rejection of Lord Hutton’s approach counts against this view. The better argument is that Mushtaq is based in trial fairness, whereas the public policy exclusion of improperly obtained evidence does not necessarily involve trial fairness considerations, so the Judge has sole jurisdiction over the admissibility of that evidence. However, to argue that way is to concede (dangerously) that the jury should have jurisdiction to ignore evidence in the interests of what it considers to be trial fairness. The law is poised at the top of a slippery slope.