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04 november 2015

British Supreme Court held that information in an asylum application is admissible as evidence in a criminal trial.

In this appeal from a judgment of the Court of Appeal in Northern Ireland – given by Morgan LCJ, Higgins and Girvan LJJ, [2013] NICA 22 (7 May 2013) – Lord Neuberger (President), Lord Kerr, Lord Hughes, Lord Toulson and Lord Hodge dismissed Terence Gerard McGeough’s appeal and held that Council Directive 2005/85/EC (the Procedures Directive) did not help him in establishing that information contained in his asylum application (August 1983) in Sweden was protected from disclosure in his criminal trial (November 2010) in the UK. This unusual case involves the activities of the Irish Republican Army (IRA) and boasts quite unique facts. On 13 June 1981 McGeough was badly injured in an attack he mounted on the instructions of the IRA, along with another republican militant, in County Tyrone against Samuel Brush – a postman and also a member of the Ulster Defence Regiment (UDR). Expecting an attack on his life, Brush had been wearing a bulletproof vest. He also had a Smith and Wesson revolver for personal protection and opened fire and injured McGeough who needed to have a .38 bullet surgically removed from his body.
Although in the Republic of Ireland, Monaghan is not far from Aughnacloy in the townland of Cravenny Irish, the spot near which the attack on Brush took place in a remote part of County Tyrone in Northern Ireland. McGeough’s critical condition meant that to cope with the gunshot wound to the chest, he was airlifted from Monaghan and admitted to a Dublin hospital. When he was returned to a hospital in Monaghan, despite being under police guard he managed to escape on 27 June 1981 and made his way out of the country soon thereafter. Three decades later on 18 February 2011, at Belfast Crown Court Stephens J convicted McGeough of attempted murder, possession of firearms with intent to commit an indictable offence, and two counts of membership of the IRA (a proscribed organisation) from 1 January 1975 until 14 June 1981. McGeough was sentenced to a 20-year prison term but served less than two years under the terms of theGood Friday Agreement 1998, he was released in January 2013.
Arguing that the trial judge (i) erred in refusing to stay the proceedings as an abuse of the court’s process and (ii) also erred in law in admitting the evidence in the Swedish asylum application, in proceedings below McGeough appealed to the Court of Appeal (Criminal Division) in Northern Ireland but his appeal was dismissed as none of the grounds of appeal were made out and his convictions were not considered unsafe. Morgan LCJ held that McGeough had received legal advice as to Swedish law in Sweden that an unsuccessful asylum application could properly be revealed to the authorities in another jurisdiction and the Supreme Court concurred with this conclusion.
In 1983, McGeough claimed asylum in Sweden. His application contained documents describing the circumstances and consequences of the shooting but was refused. Subsequently, in 1988, he was arrested for offences allegedly committed in Germany. The British authorities requested the asylum application documents from Sweden. In 1991, District Inspector Cowen of the Royal Ulster Constabulary (RUC) visited McGeough in prison in Germany and informed him he was under investigation for Brush’s attempted murder. In March 1992, the Director of Public Prosecutions considered extraditing him to the UK but he was instead extradited to the United States in 1992 where he pleaded guilty and served a two-year sentence for moving weapons (including surface-to-air-missiles, heavy machine guns and Semtex from Libya) between states without a licence. Apparently, McGeough’s other encounters with law enforcement authorities included being arrested in August 1988 while crossing the Dutch-German border with two AK47 rifles in his car and charged with attacks on the British Army of the Rhine for which he served four years in Germany in a special detention facility but his trial was superseded by events because he was extradited to the US.
Against that history, McGeough was deported from America to Ireland in 1996. The police in Northern Ireland soon became aware that he was resident there. He qualified as a teacher after studying in Dublin and accepted that during the period May 1996-July 2000 he would have expected to have been arrested in Northern Ireland. He claimed that following a conversation in 2000 with a Sinn Féin member called Gerry Kelly, who had been involved during peace negotiations in discussions about the liability of those who had committed past terrorist acts, he understood he would not be prosecuted for past crimes. In relation to the liability of “on the runs” to arrest in relation to past crimes, McGeough said that the issue had been discussed in the context of the peace process and he contended that Kelly suggested that he provide him with his name and address to be included in a list of such persons to be submitted on behalf of Sinn Féin.
Claiming that he inherited property in Northern Ireland in 1999, McGeough openly lived there subsequently. His children studied in County Tyrone, he used his name to apply for planning permission, served on a jury but bizarrely when, in 2007, police in Northern Ireland questioned him because he was urinating by the side of the road he said that he was “Terence McGeough” even though he is universally known as “Gerry McGeough”. He also provided a Dublin address saying his car was registered there and that his family members were claiming benefits in the Republic of Ireland whereas these representations conflicted with his assertion that he was openly resident in Northern Ireland.
One month later, the investigation into Brush’s attempted murder was reopened. As detailed above, Stephens J convicted McGeough whose wound had been confirmed as having been caused by a bullet from Brush’s weapon. McGeough failed to account for the scarring to his torso and Stephens J drew an adverse inference from that failure and from his failure to give evidence at his trial.
When news broke in April 2014 that the Supreme Court had granted permission to appeal, McGeough’s solicitors said that the use of evidence from his “alleged” asylum application made 30 years ago in Sweden in his UK trial was a breach of common law rules and Article 6 (right to a fair trial) of the European Convention on Human Rights (ECHR). They also said that the common policy of protection for asylum seekers under European Union law “was repeatedly ignored” in their client’s case. The details used in the Swedish asylum application – the name, the date of birth, the place of birth and the next of kin – matched McGeough’s and a handwriting expert opined that the handwritten letters and signatures were his. Stephens J was satisfied beyond reasonable doubt that it was McGeough who made the asylum application which was supported by a handwritten letter admitting that he shot “a British Army officer” in the chest using a .45 calibre revolver (a relic from 1912) in an ambush in Ballygawley.
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