R v McGeough
| Jurisdiction | Northern Ireland |
| Judge | Lord Kerr,Lord Hodge,Lord Hughes,Lord Neuberger,Lord Toulson |
| Judgment Date | 21 October 2015 |
| Neutral Citation | [2015] UKSC 62 |
| Date | 21 October 2015 |
| Court | Supreme Court |
[2015] UKSC 62
Lord Neuberger, President
Lord Kerr
Lord Hughes
Lord Toulson
Lord Hodge
Appellant
Orlando Pownall QC
Sean Devine (Instructed by Carlin Solicitors)
Respondent
David McDowell QC
Robin Steer BL (Instructed by Public Prosecution Service)
Heard on 9 July 2015
(with whom Lord Neuberger, Lord Hughes, Lord Toulson and Lord Hodge agree)
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.
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.
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.
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.
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.
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.
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 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.
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.
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.
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.
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.
In the course of the application by Mr McGeough to have the information contained in the application form...
To continue reading
Request your trial
-
Secretary of State for the Home Department v R
...approach, and in particular the passage cited above, was endorsed by this court in Re B, R and C (Children) [2002] EWCA Civ 1825. 21 In R v McGeough [2015] UKSC 52, the Supreme Court considered arguments advanced by a defendant in criminal proceedings against the disclosure into the proce......
-
VT (Article 22 Procedures Directive – Confidentiality) Sri Lanka
...Court of Justice of the European Union (CJEU) relating to Article 22. The only case that touches on it is the Supreme Court decision in R v McGeough [2015] UKSC 62. In that case the Supreme Court considered Article 22 of the Procedures Directive in the context of criminal proceedings in the......
-
G v G
...1178; [2008] 3 All ER 775, HL(E)R v Kayani (Practice Note) [2011] EWCA Crim 2871; [2012] 1 WLR 1927; [2012] 2 All ER 641, CAR v McGeough [2015] UKSC 62; [2015] 1 WLR 4612; [2016] 1 All ER 953, SC(NI)R (Kuchiey) v Secretary of State for the Home Department [2012] EWHC 3596 (Admin)R (ST) v Se......
-
VR v YD
...within other jurisdictions as a complete bar on disclosure. Furthermore, as is plain from the judgment delivered by the Supreme Court in R v McGeough [2015] UKSC 52, absolute confidentiality only applies during the process of examination of the asylum application 25 In this context, as Pet......
-
Northern Ireland Dimensions to the First Decade of the United Kingdom Supreme Court
...7, [2019] 3 All ER 191 (Finucane); InthematterofanapplicationbyHughJordanforJudicial Review [2019] UKSC 9, [2019] HRLR 8.47 RvMcGeough [2015] UKSC 62, [2015] 1 WLR 4612 (McGeough); In the matter of an applicationby Denis Hutchings for Judicial Review [2019] UKSC 26 The Times 31 July 2019 (H......