JUDGMENT
R v McGeough (Appellant) (Northern Ireland)
before
Lord Neuberger, President
Lord Kerr
Lord Hughes
Lord Toulson
Lord Hodge
JUDGMENT GIVEN ON
21 October 2015
Heard on 9 July 2015
Appellant Respondent
Orlando Pownall QC David McDowell QC
Sean Devine Robin Steer BL
(Instructed by Carlin
Solicitors
)
(Instructed by Public
Prosecution Service
)
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LORD KERR: (with whom Lord Neuberger, Lord Hughes, Lord Toulson and
Lord Hodge agree)
Introduction
1. In 1981 Samuel Brush worked as a postman. He was also a member of the
Ulster Defence Regiment. Members of that regiment were frequently targeted by
paramilitary groups then operating in Northern Ireland. Because of that Mr Brush
was wearing light body armour and carrying a personal protection weapon when he
was ambushed by two gunmen on 13 June 1981. The ambush took place in a remote
area of County Tyrone, some four and a half miles from the village of
Aughnacloy.
2. Although suffering bullet wounds from the attack on him, Mr Brush managed
to fire his gun at one of his assailants. One of the bullets which he fired struck one
of the gunmen. Some time later that person was admitted to hospital in Monaghan
which, despite the fact that it is in the Republic of Ireland, is not far from
Aughnacloy. On his trial for the attempted murder of Mr Brush, it was held that the
appellant was the man who had been admitted to that hospital and that he had been
engaged in the attack and was guilty of attempted murder. Those findings and the
appellant’s conviction of the attempted murder of Mr Brush are not under challenge
in this appeal.
3. The injuries that the appellant had sustained were serious. He was airlifted to
a hospital in Dublin. There he underwent significant surgery. A bullet was removed
from his body. This was handed to police and was later subjected to ballistic tests.
Inevitably, as a result of the operation, there was substantial scarring of the patient’s
torso. The results of the ballistic tests and the appearance of scarring on the
appellant’s body were significant items of evidence on his trial.
4. After a relatively short period of convalescence in Dublin, the appellant was
returned to Monaghan General Hospital on 22 June 1981. Although he was
thereafter under police guard, he managed to escape on 27 June and some time after
that, he left the country.
5. On 22 August 1983, a man calling himself Terence Gerard McGeough made
an application for asylum in Sweden. The name, the date of birth, the place of birth
and the next of kin that were given on the asylum application all matched those of
the appellant. His Irish passport was submitted with the application. An expert gave
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evidence on his trial that the handwriting on the application form was that of the
appellant. The trial judge expressed himself as satisfied that it was the appellant who
had made the asylum application.
6. Although it was not formally accepted by the appellant that he had made that
application, this has not been disputed throughout the various hearings which have
taken place. Nor has it been disputed that the form in which the application for
asylum was made contained information to the effect that the appellant had become
an operational member of the Irish Republican Army in early 1976 and that
thereafter he was given increasing levels of responsibility. These led to his being
assigned to take part in the attack on Mr Brush. He carried out that attack as a
member of the Irish Republican Army. That group was a proscribed organisation
throughout the time of the appellant’s admitted membership of it.
7. The appellant was charged with offences of attempted murder and possession
of a firearm. He was convicted of both. Neither of these charges is the subject of this
appeal. On the basis of the material contained in the asylum application form, he
was further charged with being a member between 1 January 1975 and 1 June 1978
of the Irish Republican Army contrary to section 19(1) of the Northern Ireland
(Emergency Provisions) Act 1973. He was also charged with the same offence in
relation to the period between 31 May 1978 and 14 June 1981, contrary to section
21(1) of the Northern Ireland (Emergency Provisions) Act 1978. He was convicted
of those charges also.
The proceedings
8. The appellant’s trial on all four charges took place at Belfast Crown Court in
November 2010 before Stephens J, sitting without a jury. The appellant did not give
evidence. On 18 February 2011, the judge delivered judgment, convicting the
appellant of all the offences with which he had been charged. The convictions on
the first two counts, those of the attempted murder of Mr Brush and possession of a
firearm, were based on the identification of the appellant as the man whom Mr Brush
had shot. This is turn depended on a number of factors, including the name and age
given by the person admitted to Monaghan hospital, the presence of a tattoo on the
patient’s arm which matched that found on the appellant after his arrest, operation
scars on the appellant’s body which were precisely where one would expect to find
them in light of the surgery which had been carried out and the fact that ballistic
tests carried out on Mr Brush’s personal protection weapon had rifling marks which
matched the bullet removed from the patient during the operation in Dublin. The
judge also drew an adverse inference against the appellant because of his failure to
give evidence or to account for the scarring on his body.
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9. An application had been made during Mr McGeough’s trial that the
information that had been supplied when he sought asylum in Sweden should not be
admitted in evidence. The application was made on two bases. Firstly, it was
contended that the evidence should be excluded under article 76 of the Police and
Criminal Evidence (Northern Ireland) Order 1989 (PACE) because it would have
such an adverse effect on the fairness of the proceedings that the court ought not to
admit it. Secondly, it was suggested that the admission of the evidence would offend
the rule against self-incrimination.
10. Before ruling on the application to exclude the evidence, Stephens J heard
the testimony of Mrs Helene Hedebris, a legal expert from the migration board in
Sweden. She explained that an application for asylum is made to the police
department. It is then transferred to the migration board. The board takes the
decision on the application. There is a right of appeal from the board’s decision. Mr
McGeough’s application for asylum was rejected by the board. He exercised his
right to appeal. His appeal was dismissed.
11. Mrs Hedebris gave evidence that Sweden had a centuries-old tradition of
openness in relation to public documents. The only exception to this related to
documents whose disclosure was forbidden by a specific secrecy code made under
a Secrecy Act. While this code applied to files for asylum applications generally, it
did not prohibit the disclosure of information from those files which was required
for a criminal investigation unless the asylum application had been successful. In
that event, material obtained in the course of an asylum application was not
disclosed. This is not relevant in Mr McGeough’s case, however, because, as already
noted, his application was refused and his appeal against the refusal was dismissed.
There was therefore no reason under Swedish law to withhold the material from the
prosecuting authorities in the United Kingdom.
12. Mrs Hedebris said that the position about disclosure of such material was
widely-known in Sweden. The appellant had had the benefit of two lawyers’ advice,
the first at the time of his application for asylum and the second when he appealed
against the decision to dismiss his application. It was inconceivable that he had not
been advised of the position. He could not have been in doubt when he made the
application, that in the event of its not succeeding, the material that it generated
would enter the public domain.
13. In the course of the application by Mr McGeough to have the information
contained in the application form excluded from evidence, it was drawn to the
judge’s attention that if, in 2009, an individual applied in the United Kingdom for
asylum, an immigration officer would give him, on what is described as “a statement
of evidence form numbered ASL 1123”, the following explanation as to how his
application would be treated:
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“The information you give us will be treated in confidence and
the details of your claim for asylum will not be disclosed to the
authorities of your own country. However, information may be
disclosed to other government departments, agencies, local
authorities, international organisations and other bodies where
necessary for immigration and nationality purposes, or to
enable them to carry out their functions. Information may also
be disclosed in confidence to the asylum authorities of other
countries which may have a responsibility for considering your
claim. If your asylum application is unsuccessful and you are
removed from the United Kingdom, it may be necessary for us
to provide information about your identity to the authorities in
your own country in order to obtain travel documentation.”
14. Stephens J was also asked to consider paragraph 339IA of the Immigration
Rules 1994. This provides that information supplied in support of an application
(and the fact that an application had been made), would not be disclosed to the
alleged actors of persecution of the applicant.
15. The judge held that the undertaking contained in form ASL 1123 went further
than was required by Council Directive 2005/85/EC of 1 December 2005 on
minimum standards on procedures in member states for granting and withdrawing
refugee status (the Procedures Directive). He found that the relevant obligation (in
article 22 of the Procedures Directive) was restricted to the disclosure of information
for the purposes of examining individual cases. It did not restrict the disclosure of
information for the purposes of undertaking criminal prosecutions.
16. Since, in order to make the application for asylum, the appellant was not
under compulsion to reveal the information that he did (and there was therefore no
question of a breach of the rule against self-incrimination); since the appellant must
have been aware that the information that he disclosed would enter the public
domain if the application was unsuccessful; and since there was nothing in Swedish
law, the Procedures Directive or general public policy considerations which
contraindicated the disclosure of the information to prosecuting authorities in the
United Kingdom, the judge decided that the conditions necessary for the exercise of
his power under section 76 of PACE were not present and he directed that the
material produced by the appellant in making his asylum application should be
admitted in evidence. It was on this material that the appellant was convicted on the
third and fourth counts of membership of a proscribed organisation.
17. On appeal to the Court of Appeal, the basis of the objection to the admission
of the evidence was described in para 10 of the judgment of the Lord Chief Justice,
Sir Declan Morgan:
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“… the appellant submitted that the learned trial judge should
not have admitted the Swedish asylum materials. It was argued
that assertions in such an application were inherently unreliable
since applicants for asylum were liable to exaggerate the basis
for their claims. Secondly, it was contended that these were
admissions made without caution and the approach to their
admission should correspond with the admission of statements
made to police in similar circumstances. Thirdly, it was
submitted that since it was necessary to set out the background
to the appellant’s asylum claim in this documentation these
statements ought to be treated as statements made under
compulsion. Lastly, the appellant argued that reliance on such
statements would undermine the purpose of the Refugee
Convention by creating a chill factor which would prevent
deserving claimants disclosing valid circumstances for fear of
subsequent victimisation in their home territory if the
application failed. …”
18. As well as article 22 of the Procedures Directive, the appellant relied on
article 41 which stipulates that state authorities responsible for implementing the
Directive “are bound by the confidentiality principle as defined in national law, in
relation to any information they obtain in the course of their work”.
19. The Court of Appeal dismissed the appeal. In rejecting the arguments in
relation to the admission of the Swedish material, the Lord Chief Justice observed
that the evidence was lawfully obtained in Sweden and in the United Kingdom in
accordance with the international conventions applicable at the time. The appellant
was not under compulsion. There was no question, therefore, of the rule against selfincrimination being engaged. The appellant had had legal advice in Sweden as to
the effect of Swedish law. Under that law the asylum documents could properly be
revealed to the authorities in another jurisdiction if the asylum application was
unsuccessful.
The arguments
20. On the hearing of the appeal before this court, the appellant accepted that
there was nothing in the Procedures Directive or the Immigration Rules which
explicitly forbade the disclosure of information concerning applications for asylum.
It was contended, however, that the “clear purpose” of the Directive was to
encourage applicants for asylum to make full disclosure to the relevant authorities.
In order that this be achieved, applicants should feel secure that the information that
they supplied would not be revealed to state authorities in the country from which
they had fled. It was acknowledged that the relevant instruments referred to the
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withholding of information from the actors of persecution but it was suggested that
this reflected a broader public policy that all applicants for asylum should be
encouraged to be candid and open in their applications. Candour depended on
assurance that the information revealed would not be disclosed.
21. Quite apart from the need to inspire applicants with confidence that the
material would not be disclosed, there was, it was argued, a distinct public policy
imperative which dictated that such material would not be used in criminal
proceedings against the asylum-seeker. Two principal grounds were advanced in
support of this contention. First, it was pointed out that undertakings given to asylum
seekers in the United Kingdom would preclude the disclosure of that material.
Secondly, by analogy with provisions in the Children Act 1989, the appellant argued
that where an applicant for asylum was effectively compelled to give information
which exposed him to the possibility of criminal sanction, that disclosure should not
be used in subsequent criminal proceedings.
Discussion
22. The need for candour in the completion of an application for asylum is selfevident. But this should not be regarded as giving rise to an inevitable requirement
that all information thereby disclosed must be preserved in confidence in every
circumstance. Obviously, such information should not be disclosed to those who
have persecuted the applicant and this consideration underlies article 22 of the
Procedures Directive. It provides:
“Collection of information on individual cases
For the purposes of examining individual cases, member states
shall not: (a) directly disclose information regarding individual
applications for asylum, or the fact that an application has been
made, to the alleged actor(s) of persecution of the applicant for
asylum; (b) obtain any information from the alleged actor(s) of
persecution in a manner that would result in such actor(s) being
directly informed of the fact that an application has been made
by the applicant in question, and would jeopardise the physical
integrity of the applicant and his/her dependants, or the liberty
and security of his/her family members still living in the
country of origin.”
23. As the appellant has properly accepted, there is no explicit requirement in
this provision that material disclosed by an applicant for asylum should be preserved
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in confidence for all time and from all agencies. On the contrary, the stipulation is
that it should not be disclosed to alleged actors of persecution and the injunction
against its disclosure is specifically related to the process of examination of
individual cases. The appellant’s case had been examined and his application had
been refused. The trigger for such confidentiality as article 22 provides for was
simply not present.
24. The appellant is therefore obliged to argue that the need for continuing
confidentiality in his case arises by implication from the overall purpose of the
Directive. But neither article 22 nor article 41 provides support for that claim. Article
22 is framed for a specific purpose and in a deliberately precise way. To imply into
its provisions a general duty to keep confidential all material supplied in support of
an asylum application would unwarrantably enlarge its scope beyond its obvious
intended purpose.
25. Article 41 provides:
“Member states shall ensure that authorities implementing this
Directive are bound by the confidentiality principle as defined
in national law, in relation to any information they obtain in the
course of their work.”
26. It is not disputed that Swedish national law does not define “the
confidentiality principle” as extending to the non-disclosure of information supplied
in support of an asylum application, where that application has been unsuccessful.
On the contrary, the tradition of the law in that country is that information generated
by such applications should enter the public domain. Article 41 cannot assist the
appellant, therefore.
27. Neither of the specific provisions of the Directive that the appellant has
prayed in aid supports the proposition that its overall purpose was to encourage
candour by ensuring general confidentiality for information supplied in support of
an application for asylum. The Directive in fact makes precise provision for the
circumstances in which confidentiality should be maintained. It would therefore be
clearly inconsistent with the framework of the Directive to imply a general charter
of confidentiality for such material.
28. The fact, if indeed it be the fact, that material which an applicant for asylum
in the United Kingdom supplied, in circumstances such as those which confronted
the appellant when making his application in Sweden, would not be disclosed here,
likewise cannot assist his case. The information which the Swedish authorities
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provided was properly and legally supplied. When the authorities in this country
obtained that material, they had a legal obligation to make appropriate use of it, if,
as it did, it revealed criminal activity on the appellant’s part.
29. Neither the terms of the Directive nor the circumstances in which material
would have been dealt with, if obtained in the United Kingdom, impinged on the
manner in which the trial judge was required to approach his decision under article
76 of PACE. There was nothing that was intrinsic to that material nor in the
circumstances in which it was provided that would support the conclusion that its
admission would have such an adverse effect on the fairness of the proceedings that
the court ought not to admit it. The judge was plainly right to refuse the application.
30. The purported analogy with the provisions of the Children Act 1989 is inapt.
That Act imposed an obligation on all persons giving evidence in proceedings
concerning the care, supervision and protection of children to answer any relevant
question irrespective of whether the answer might incriminate him or his spouse or
civil partner – section 98(1). In light of that compulsive provision, it is unsurprising
that section 98(2) should provide that statements or admissions “shall not be
admissible in evidence against the person making it or his spouse or civil partner in
proceedings for an offence other than perjury”. There is no correlative situation of
compulsion in the case of an application for asylum and, consequently, no occasion
for a prohibition on the use of evidence obtained through that procedure. In any
event, the need for a specific provision forbidding the use of such material in the
Children Act and the absence of any corresponding provision in the law relating to
asylum applications underscores the inaptness of the claimed comparison.
Conclusion
31. The appeal must be dismissed.
