This case has now been reported in full in The Weekly Law Reports as Regina v McGeough [2015] 1 WLR 4612, SC(NI).

CRIME – Evidence – Admissibility Information provided in asylum application – Defendant making unsuccessful application for asylum in Sweden – Swedish authorities lawfully providing material from asylum application to United Kingdom authorities – Criminal proceedings subsequently brought against defendant in Northern Ireland – Judge ruling that information provided in asylum application admissible in evidence – Whether evidence should have been excluded on grounds of fairness – Whether Council Directive providing for confidentiality of information supplied in support of asylum application Police and Criminal Evidence (Northern Ireland) Order 1989, art 76 Council Directive 2005/85/EC, arts 22, 41

Regina v McGeough

[2015] UKSC 62; [2015] WLR (D) 424

SC: Lord Neuberger of Abbotsbury PSC, Lord Kerr of Tonaghmore, Lord Hughes, Lord Toulson, Lord Hodge JJSC: 21 October 2015

Information which was provided by a person to Swedish authorities in the course of an unsuccessful application for asylum could subsequently be used in evidence in criminal proceedings against that person in the United Kingdom.

The Supreme Court so held in dismissing the appeal of the defendant, Terence Gerard McGeough, against the dismissal by the Court of Appeal in Northern Ireland (Morgan LCJ, Higgins and Girvan LJJ) [2013] NICA 22 on 7 May 2013 of his appeal against conviction at the Crown Court at Belfast (before Stephens J, sitting without a jury) of two counts of being a member of the Irish Republican Army, contrary to section 19(1) of the Northern Ireland (Emergency Provisions) Act 1973 and section 21(1) of the Northern Ireland (Emergency Provisions) Act 1978.

The prosecution case was based on material contained in an unsuccessful application for asylum made by the defendant to the Swedish authorities in 1983, which included his account of being an operational member of the IRA and of carrying out an attack on a member of the Ulster Defence Regiment. The trial judge rejected a defence submission that that evidence should be excluded under article 76 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341) because it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it and that its admission would offend the privilege against self-incrimination.

LORD KERR JSC, with whom the other members of the court agreed, said that the defendant had contended that the “clear purpose” of Council Directive 2005/85/EC was to encourage applicants for asylum to make full disclosure to the relevant authorities. In order that that be achieved, applicants should feel secure that the information which they supplied would not be revealed to state authorities in the country from which they had fled. It was acknowledged that article 22 of the Directive referred to the withholding of information from the actors of persecution but it was suggested that that 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. 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 that 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 defendant 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.

The need for candour in the completion of an application for asylum was self-evident. But that should not be regarded as giving rise to an inevitable requirement that all information thereby disclosed had to be preserved in confidence in every circumstance. Obviously, such information should not be disclosed to those who had persecuted the applicant and that consideration underlay article 22 of the Directive. There was no explicit requirement in that 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 was that it should not be disclosed to alleged actors of persecution and the injunction against its disclosure was specifically related to the process of examination of individual cases. The defendant’s case had been examined and his application had been refused. The trigger for such confidentiality as article 22 provided for was simply not present. The defendant was therefore obliged to argue that the need for continuing confidentiality in his case arose by implication from the overall purpose of the Directive. However, article 22 was 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. Article 41 provided that member states should ensure that authorities implementing the Directive were bound by the confidentiality principle as defined in national law, in relation to any information they obtained in the course of their work. It was not disputed that Swedish national law did not define “the confidentiality principle” as extending to the non-disclosure of information supplied in support of an asylum application, where that application had been unsuccessful. On the contrary, the tradition of the law in that country was that information generated by such applications should enter the public domain. Article 41 could not assist the defendant, therefore. The Directive made 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. The fact, if indeed it were the fact, that material which an applicant for asylum in the United Kingdom supplied, in circumstances such as those which confronted the defendant when making his application in Sweden, would not be disclosed here, likewise could not assist his case. The information which the Swedish authorities had provided had been properly and legally supplied. When the authorities in the United Kingdom had obtained that material, they had had a legal obligation to make appropriate use of it, if, as it did, it revealed criminal activity on the defendant’s part. 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 the 1989 Order. There was nothing which was intrinsic to that material or in the circumstances in which it had been provided which 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 had plainly been right to refuse the application.

The purported analogy with the provisions of the Children Act 1989 was 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. In light of that compulsive provision, it was unsurprising that section 98(2) should provide that statements or admissions “shall not be admissible in evidence against the person making it … for an offence other than perjury.” There was 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 underscored the inaptness of the claimed comparison.

Appearances

Orlando Pownall QC and Sean Devine, of the Northern Ireland Bar, (instructed by Carlin Solicitors, Belfast) for the defendant.

David McDowell QC and Robin Steer, both of the Northern Ireland Bar, (instructed by Public Prosecution Service, Belfast for the prosecution.

Reported by: Jill Sutherland, Barrister.

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