Summary
Michaelmas
Term
[2015] UKSC 62
On appeal from: [2013] NICA 22
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
Orlando Pownall QC
Sean Devine
(Instructed by
Carlin Solicitors)
|
|
Respondent
David McDowell QC
Robin Steer BL
(Instructed by
Public Prosecution Service)
|
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 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.
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:
“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:
“… 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 self-incrimination 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 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
self-evident. 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 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 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.
