KV (Sri Lanka) v Secretary of State for the Home Department  UKSC 10 (6 March 2019)
In a recent judgment given by Lord Wilson the Supreme Court unanimously allowed KV’s appeal, remitting the matter to the UT for fresh determination. KV, a Sri Lankan asylum-seeker of Tamil ethnicity, claimed that the scars on his arm and back were the result of torture but his claim was still disbelieved on the basis that the scars were self-inflicted by proxy (SIBP), i.e. by another person at his invitation. While not a member of the Tamil Tigers, KV used to melt gold for the organisation. He claimed that Sri Lanka’s government detained and tortured him and tried to extract information about where the gold and other valuables were hidden. He contended that the government burned his arm with hot metal rods while he was conscious. The pain rendered him unconscious and during the time he remained unconscious hot rods were applied to his back. Upon regaining consciousness, his captors increased the intensity of his pain by pouring petrol on him and threatening to set him on fire. A few months later, his burnt skin healed into scars. Photographs he provided were deemed insufficient evidence and the decision-maker found inconsistencies in his narrative, noting that no medical evidence was provided in support of his claim of torture which was rejected. The FTT dismissed his appeal. The UT was unconvinced by KV’s evidence but it recognised that if his scarring was caused by torture then a real possibility arose that his story was true.
KV’s case was assisted by the expert evidence of Dr Zapata-Bravo who said that the scars were inflicted by burning with a hot metal rod. The scarring on the arm had blurred edges. But the scarring on KV’s back had such precise edges that he must have been unconscious while the burns were inflicted. Dr Zapata-Bravo concluded that his clinical findings were “highly consistent” with KV’s account of torture, and that it was unlikely the scars were SIBP. The UT’s determination and reasons, described by Lord Wilson as “a mammoth document” underpinned by “massive effort”, was against KV and dismissing his appeal UTJJ Storey, Dawson and Kopieczek held that it was clinically unlikely, given their precise edging, that (a) his scars could have been inflicted unless he was unconscious, and (b) that a person like KV could remain unconscious throughout multiple applications of hot metal rods to his arms and back, unless he was anaesthetised. The Court of Appeal held by a majority (Elias LJ dissenting) that the evaluation made by the UT was legitimately open to it and thus it could not be criticised as perverse or irrational, Moreover, it was beyond Dr Zapata-Bravo’s remit as an expert medical witness to state his opinion that his findings were “highly consistent” with KV’s claim of torture as a whole.
The Istanbul Protocol
The protocol imparts guidance to medical experts to indicate for each lesion the degree of consistency between it and the cause given by the patient, on a scale from “not consistent” to “diagnostic of”. It provides that “ultimately, it is the overall evaluation of all lesions, and not the consistency of each lesion with a particular form of torture that is important in assessing the torture story”. Thus, in concluding that his clinical findings were “highly consistent” with KV’s claim of torture, Dr Zapata-Bravo had formulated his conclusion in accordance with the terms of the protocol.
The Supreme Court
Unanimously allowing the appeal, the Supreme Court described the Court of Appeal’s observations as “controversial”. The UT did not think that, in opining that his findings were “highly consistent” with KV’s claim of torture, Dr Zapata-Bravo had exceeded the boundaries of his role. The judges referred to authority supporting the principle that one of the functions of a medical report in relation to scars is to offer a clear statement in relation to their consistency with the history given. Equally, the Home Office did not complain to the Court of Appeal that Dr Zapata-Bravo’s views were professionally inappropriate in any way.
However, Sales and Patten LJJ had different ideas because he “trespassed beyond his remit as an expert medical witness into the area where it was for the UT to make an assessment of all the evidence.” Sales LJ held that any further guidance was unnecessary because the correct approach to instructing experts is found in the Practice Direction of the Immigration and Asylum Chambers of the First-tier and Upper Tribunal 2014. But Lady Hale, Lord Wilson, Lady Black, Lord Briggs and Lord Kitchin did not agree with Sales and Patten LJJ. Instead, they concurred with Elias LJ’s position that the majority had erred by holding that Dr Zapata-Bravo had exceeded the proper limit of his role in the manner alleged. Lord Wilson disagreed with two aspects of Sales LJ’s judgment, namely his very narrow construction of the word “trauma” in the protocol and his handling of Dr Zapata-Bravo’s oral evidence.
Lord Wilson said that the Home Secretary did not want to defend the majority’s position. Decision-makers’ difficult task of analysing whether scars are the really result of torture is such that they can legitimately receive assistance from medical experts who feel able to offer an opinion about the consistency of their findings with the asylum-seeker’s claim regarding the circumstances in which the scarring was sustained, not limited to the mechanism by which it was sustained.
If Dr Zapata-Bravo only said that the scarring was caused by application of a hot metal rod, this would add nothing but the distinctions he drew between the scars on the back and the arm provided the UT assistance of significant potential value and the judges did not doubt his expertise. Keeping all this in mind, Lord Wilson overruled Sales LJ’s approach – namely that the references in para 187 of the protocol to the “trauma described” relate only to the mechanism by which the injury is said to have been caused – and held that:
21. … That is too narrow a construction of the word “trauma”. It is clear that in the protocol the word also covers the wider circumstances in which the injury is said to have been sustained.
Notably, Sales LJ had himself quoted paragraph 188 of the protocol which guides the expert towards the type of evaluation important in the assessment of “the torture story”. Furthermore, in formulating a clinical impression for the purpose of reporting evidence of torture, paragraph 105 of the protocol recommends that experts should ask themselves six questions, including whether their findings are consistent with the alleged report of torture and whether the clinical picture suggests a false allegation of torture. Lord Wilson extracted paragraph 122 of the protocol whereby “the purpose of the written or oral testimony of the physician is to provide expert opinion on the degree to which medical findings correlate with the patient’s allegations of abuse.”
In SA (Somalia)  EWCA Civ 1302, concerning alleged torture, the Court of Appeal held that the task for which an asylum-seeker tendered a medical report was to provide a clear statement as to the consistency of old scars found with the history given, directed to the particular injuries said to have occurred as a result of the torture or other ill treatment relied on as evidence of persecution. Notably, the court commended paragraphs 186 and 187 of the protocol and Sir Mark Potter commended them as particularly instructive for those requested to supply medical reports in relation to alleged torture. Later in RT (medical reports – causation of scarring) Sri Lanka  UKAIT 00009 the tribunal described SA (Somalia) as a landmark case in the identification of the purpose of a medical report in relation to alleged torture and in the protocol’s indorsement. Equally, in Mehmet Eren v Turkey  ECHR 1070, the Strasbourg Court’s approach coincided with these cases as did the relevant Guidelines on the Judicial Approach to Expert Medical Evidence and the Home Secretary’s instruction Medico-Legal Reports from the Helen Bamber Foundation and the Medical Foundation Medico-Legal Report Service. Correcting Sales LJ’s flawed approach, Lord Wilson found no inconsistency between that Practice Direction and the protocol and he held:
24. … Of course the expert must comply with the Practice Direction, including in particular the requirement in paras 10.2 and 10.4 not to offer an opinion outside the area of his expertise. But the Practice Direction does not address the specific area addressed by the protocol, namely the investigation of torture. When invited to investigate an allegation of torture, the expert should therefore recognise the protocol as equally authoritative – in accordance with the Court of Appeal’s decision in the SA (Somalia) case.
Therefore, an expert investigating an allegation of torture should recognise the protocol as equally authoritative as the relevant Practice Direction on expert evidence in immigration and asylum cases at the FTT and the UT. His Lordship explained that unless an expert finds that the trauma described is either “not consistent with” or “diagnostic of” the alleged torture, it would be beyond the expert’s remit to state that they “believed” the appellant. Overall, the conclusion about credibility always rests with the decision-maker following a survey of all the evidence.
In his dissenting judgment, Elias LJ had pointed out numerous problems with the UT’s reasons for rejecting KV’s account of torture. It was significant that the UT’s summary of Dr Zapata-Bravo’s evidence lacked apparent awareness that the scarring with precise edging was only on KV’s back, and addressed a hypothesis, not advanced by the doctor or KV, that KV was unconscious while the hot metal rods were applied to his arms as well as to his back. The doctor opined that the edges to the scars on the arm indicated the infliction of burns when KV had been conscious. But the UT had overlooked this key point.
Lord Wilson was not satisfied with Sales LJ’s stance that Dr Zapata-Bravo’s oral evidence in the UT must have been that the scars on the arm as well as on the back were precisely defined and that complete analgesia would have been required to produce all of them. Interestingly, whereas Sales LJ blamed KV for failing to provide the Court of Appeal with a transcript of the doctor’s oral evidence (without which the UT was not at fault), Lord Wilson judged that:
29. … But it is dangerous for us who work in appeal courts to assume that the answer to an apparent mistake at first instance must lie in oral evidence not recorded in the judgment and not transcribed for the purposes of the appeal. The court of first instance should be expected to record the oral evidence on which it places reliance.
The Supreme Court was provided a transcript of all the oral evidence given to the UT. Clearly, in his oral evidence Dr Zapata-Bravo never departed from his clinical findings of a difference in the scars as between the back and the arm or from the importance he had attached to the distinction.
In light of KV’s serious lack of credibility in several areas, the UT was right to address the possibility of SIBP. But when it concluded that there were only two real possibilities – either torture or SIBP – and when it rejected the former, it failed to take into account the fact that self-infliction of wounds was inherently unlikely. Lord Wilson noted that there is evidence of extensive torture by state forces in Sri Lanka at the relevant time. On the other hand, evidence of SIBP is almost non-existent among asylum-seekers and it was necessary to weigh in the balance that it is an extreme measure for someone to decide to cause himself deep injury and severe pain. Furthermore, if KV’s scars were SIBP, the wounds on his back could only have been inflicted under anaesthetic so he would have required the help of someone with medical expertise. In the final analysis, Lord Wilson approved Elias LJ’s view that very considerable weight should be given to the fact that SIBP injuries are likely to be extremely rare.
Indeed, as Elias LJ expressed the point in his dissenting judgment, “an individual is highly unlikely to want to suffer the continuing pain and discomfort resulting from self-inflicted harm, even if he is anaesthetised when the harm is inflicted.” Overall, if KV’s wounding was SIBP, it was necessary to find an explanation (a) for the difference in the location and the presentation of the scarring as between his back and arm, and (b) for the number of wounds since, as identified by Elias LJ during the course of his dissenting judgment, “one or two strategically placed scars would equally well have supported a claim of torture”.
Compared to the strident views of UTJJ Storey, Dawson and Kopieczek in the UT and the controversial approach of Sales and Patten LJJ, Lord Wilson’s judgment leans in favour of the asylum-seeker because the protocol is as equally authoritative as the Practice Direction when it comes to torture. Therefore, there is no conflict between the two because the protocol specifically addresses the investigation of torture. This important decision will serve to ensure that the Home Office cannot dismiss those torture claims as incredible where strong medical evidence exists to the contrary.
While the Home Office preferred to remain tight-lipped about the outcome of these proceedings, KV was delighted by the decision and said: “I’m very happy about the ruling and hope that it will help many asylum seekers who have been tortured.” On the other hand, a decade after his torture and eight long years after seeking asylum in the UK, he is distressed because of being lengthily left in limbo and he complains that the culture of disbelief in the Home Office and the courts made his trauma worse since he initially suffered from the misconception that the UK would readily protect his rights.
Despite these concerns, the Supreme Court’s judgment will serve as a salutary reminder that the claims of tortured asylum-seekers should not be disbelieved automatically and hopefully Lord Sales (who was recently appointed to the Supreme Court) will see the wisdom of Lord Wilson’s approach regarding the real role of medical experts and the significant potential value that their assistance offers to the tribunals.