In a judgment handed down on 21st October 2015 the Supreme Court rejected the appeal by ex-IRA member, Terence (Gerry) McGeough that evidence in his trial on four charges was inadmissible on several alternative grounds, all of which were rejected by the court.
In 1981, McGeough and an accomplice attempted to murder postman and part-time soldier in the Ulster Defence Regiment, Samuel Brush. During the attempt, McGeough was seriously wounded. After surgery and treatment in Dublin, and during recuperation in Monaghan General Hospital, McGeough escaped leaving Ireland shortly thereafter. On 22nd August 1983, McGeough made an application for asylum in Sweden, which contained information to the effect that he was a member of the Irish Republican Army. McGeough’s asylum application failed and the British authorities obtained a file containing the failed application and the admissions made by McGeough in respect of criminal activities in the UK.
In 2010, McGeough was tried and convicted on four counts: possession of a firearm with intent to commit an indictable offence; attempted murder; and two counts (between January 1975 – June 1978 under s.19(1) Northern Ireland (Emergency Provisions) Act 1973, and May 1978 – June 1981 under s.21(1) Northern Ireland (Emergency Provisions Act 1978) of being a member of the IRA.
Cause of Action
Although information relevant to the attempted murder (‘of a British Army officer’ [sic]) and possession of a firearm were also included in the Appellant’s asylum application these convictions were not challenged, largely because the other evidence in relation to these charges was so overwhelming. However, in respect of the two charges of IRA membership, it was the Appellant’s case that the information contained in his asylum application was not admissible at trial for several reasons, of which only one was deemed of weight by the Court, that the contention that the Appellant had been ‘compelled’ to incriminate himself in his asylum application and that the Swedish authorities had exceeded the scope and purpose of EU Directive 2005/85/EC, arts.22 and 41 (relevant to both UK and Swedish asylum laws) in disclosing the incriminating information to the British authorities.
Manner and Form
Article 22(a) reads:
For the purposes of examining individual cases, Member States shall not:
- 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
Article 41 requires that:
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.
The court took the view that Art.22 required confidentiality while the examination and assessment of the application for asylum was ongoing (para.23) but not beyond that time, and certainly not after an application had failed. As to Art. 41 the court noted that the ‘confidentiality principle’ is a term whose application is defined by the relevant national law. Evidence was given that the tradition in Sweden is one of ‘openness in relation to public documents’ (para.11) and that the Appellant who had had the benefit of two lawyers’ advice would have been fully aware of this fact (para.12).
The court was not convinced either by the Appellant’s argument that if such an application were made in the UK, the material contained therein would, under UK implementation of the directive, be confidential (para.28). Indeed, it found such an interpretation actively ‘inconsistent’ with the framework of the Directive (para.27). In any event, it would not be the relevant requirement for an EU directive that all member states implement it in exactly the same fashion because of the discretion which grants member states freedom as to manner and form provided the minimum requirements and purpose of the Directive are met.
Disclosure and Candour
The Appellant argued that the ‘clear purpose’ (para.20) of the Directive was to ‘encourage applicants for asylum to make full disclosure’ and that applicants could only do so if they felt secure that any information provided would not be disclosed beyond the necessity to process the application. As a matter of public policy it can legitimately be argued that implicit in any asylum process are the notions of security and sanctuary but beyond that the argument becomes far harder to sustain. The court took the view that the requirements for confidentiality in Arts. 22 and 41 and elsewhere in the Directive did not constitute an ‘explicit requirement [of confidentiality] for all time and from agencies’ (para.23). Nor were the arguments by the Appellant that such requirements were ‘implicit’ in the Directive sustained.
In none of his trials did McGeough ever seriously contest his guilt of any of the four charges. On appeal (at para.13), his challenges were political (he claimed that he had been given assurances that his liability for the attempted murder would be covered by the contentious ‘on the runs’ immunity letters issued to some former terrorists) and procedural, challenging several aspects of the process in different hearings including an alleged breach of Art.6 ECHR because of the lapse of time as well as the non-prosecution assurances he claimed to have received.
In strict legal terms many of the arguments made by the Appellant were thin gruel indeed. His argument that he was ‘compelled’ to make full declaration of his past in his asylum application was found to have absolutely no basis in law by the Supreme Court, or in fact or law by the lower courts. Arguably, however, there is discretion inherent in the Directive which can be found in the term ‘alleged actor(s) of persecution’ rather than the more dry ‘country’ or ‘state’ used in Art.22 and elsewhere into which some higher form or level of confidentiality could be taken as implicit. In McGeough’s case at the Court of Appeal he had obliquely made this point in respect of breaches of Art.6 ECHR, that the UK authorities had pursued him beyond all reasonable duration in this matter. Such ‘persecution’ could legitimately create a justification for confidentiality ‘for all time and from all agencies’ (para.23) with such discretion retained by member states per Art.41. It could be imagined that Sweden would make an exception to its usual approach of openness where disclosure (even that application for asylum had been made) would endanger the safety of an asylum seeker, failed or otherwise.
Consideration also needs to be given to the areas of public policy which inform the necessity of candour in making an application for asylum, as there will always be a balance to be struck, particularly in ‘political’ cases such as this. States considering the granting of asylum will want the fullest information possible on the applicant, and asylum seekers are legally required to provide all information deemed essential the application per Art.20.1(a) of the Directive or risk the application failing. Meanwhile, the asylum seeker will naturally enough want to put his case for asylum in the most sympathetic if not necessarily frankest or fullest terms to maximise his chances of obtaining asylum. It is hard though to see this as genuine compulsion, as was alleged by McGeough, in either having to make the asylum application at all or what is disclosed in the application.
A further difficulty arises where the overtly criminal arises explicitly from the abstract political and the political context. Membership of a proscribed organisation might be one thing and it might be the case that where such membership is proscribed that the state from which the applicant is seeking asylum is an ‘actor of persecution’. This is qualitatively different however to being a member of a proscribed organisation on ‘active service’ (as McGeough, in IRA military parlance would certainly have regarded himself) and taking part in terrorist actions which is a markedly different matter. McGeough would of necessity had to be frank about his membership of the IRA (otherwise he was seeking asylum merely because he was on the run for firearms offences and attempted murder) but he was at least partial in his relating of the attempted murder (a postman and part-time UDR soldier such as Samuel Brush is not in any candid sense a ‘British Army officer’). Here the applicant was not fleeing a persecuting regime but rather, requirements of criminal justice which it would hard to describe as persecution. Whether in this instance the actions of the UK legal system would have amounted to persecution had McGeough been facing only the charges of IRA membership remains unclear in practical terms, but the Supreme Court has stated clearly the scope and purpose of this Directive as to any requirements of confidentiality without such subjectivity.
Alexander Thompson (LL.M Sussex) is a barrister