Judging the gatekeeper

In Wizzard v R (Jamaica) [2007] UKPC 21 (29 March 2007) the Privy Council was reminded of the decision of the House of Lords in R v Mushtaq [2005] UKHL 25, [2005] 1 WLR 1513 (blogged 22 April 2005). Although the facts of the present appeal did not require Mushtaq to be applied, some observations on it were made by the Board.

Because it is based on the ancient ("from the time of Lord Hale") common law principle against self-incrimination, Mushtaq was held to apply in Jamaica (and this implies, of course, that it extends to any other common law country unless there is legislation to the contrary effect), and to apply retrospectively to cases heard before Mushtaq was decided.

Mushtaq held that a jury must be directed, where the matter is in issue, that if they are not satisfied that a statement was made by the accused in the absence of oppression, they must ignore it.

Prior to Mushtaq, the Judicial Studies Board in England had approved a direction which, once the judge had decided the oppression point against the accused and ruled the statement admissible, the jury could give it what weight they wished, even if they thought it could have been made as a result of oppression. Thus, Mushtaq made an important correction to the way the law had developed.

Technically, what the jury is doing under the Mushtaq direction, is not deciding the admissibility question (which is a matter the judge had decided), but instead is deciding that, because of the possibility of oppression, the statement should be given no weight and it should be ignored. That, of course, is a highly technical distinction, but it has importance in preventing erosion of the standard that the judge must apply to the question of whether there was oppression.

It would be wrong for a judge to think that, because the jury can decide to ignore the statement, it may as well be ruled admissible even where there is a real risk that it had been obtained by oppression. The challenge for those involved with making judges apply the law with integrity is to ensure that this sort of error does not occur.