When does an expert report constitute “independent evidence” of torture?
2 May 2012
R (on the application of AM) v Secretary of State for the Home Department  EWCA Civ 521 – Read judgment
Whether expert evidence relied upon by an asylum seeker amounted to “independent evidence” of torture was the key issue before the Court of Appeal in this case . The issue arose in the context of AM’s claim against the Home Office for wrongful imprisonment contrary to the UK Border Agency’s Enforcement Instructions and Guidance. The Guidance, which contains the policy of the Agency on detentions (amongst other things), says that where there is “independent evidence” that a person has been tortured, that person is suitable for detention only in “very exceptional circumstances”.
AM, an Angolan national, was detained pending removal following an unsuccessful appeal from the refusal of her asylum claim, the Asylum and Immigration Tribunal having found her to have “no credibility whatsoever” and rejected her evidence that she had been raped and tortured. She later launched a fresh asylum claim on the basis of new evidence, in the form of an expert report by a wound and scar specialist, Ms Kralj, which linked the various scars on her body to torture. The claim was refused again but AM won her appeal. The Tribunal this time found that she had been raped and tortured as she had claimed, causing the scars on her body.
In a subsequent claim for false imprisonment, AM argued that upon the service of Ms Kralj’s report, she should have been released from detention in accordance with the Guidance. The Home Office denied that Ms Kralj’s report constituted “independent evidence” of torture, arguing that the report relied on AM’s own vague account of how the scars came about. In a letter to AM’s representatives, the Home Office expressed its scepticism of her inability to recollect exact dates and causes of her scars, when “the precise circumstances of these events would have been so searing as to have engraved themselves including the date and period of detention upon your client’s memory.”
The High Court: report not independent when it relies on the claimant’s own account
In the High Court, Mr Justice Burnett agreed with the Home Office and concluded that the report did not constitute independent evidence:
The scarring report provided independent evidence that the claimant bore scars in nine areas, two of which she attributed to childhood injury. Of the remaining seven, the first was adjudged by Ms Kralj to be “highly consistent” with the explanation provided to her by the claimant of how she came by it. But it could have been caused by ‘any superficial burn with a solid instrument.’ The balance of the scars were consistent with having been intentionally inflicted by other people. It is clear, not only from the scarring report but also from the narrative part of Ms Kralj’s assessment report, that she believed the claimant, taking everything she said at face value. She was unaware of the history since the claimant’s arrival in this country including a judicial determination that she was not truthful in her accounts. Whether the scars were or were not the result of torture could only be judged by reference to the claimant’s account of what had occurred…the report did not provide independent evidence that the claimant had been tortured because that depended upon accepting the claimant’s account how they were caused…. (emphasis added)
The High Court Judge was “mistaken”
Lord Justice Rix who gave the unanimous judgement of the Court of Appeal, strongly disagreed with this reading of the report and held that it did amount to independent evidence of torture:
“Ms Kralj was an independent expert. She was expressing her own independent views. As the judge himself said, her scarring report provided independent evidence of AM’s scarring, and that seven of the scars were consistent with deliberately inflicted injury… it is evident from her assessment that she believed that AM had suffered torture and rape and that those misfortunes had rendered her the “grossly traumatized” woman that she found her to be, with “feelings of deep and intense shame and self disgust”, “feelings of shame and stigamtization”, and a “fragile mental state”. Those findings are Ms KRalj’s interpretation of what she found, they are not the mere assertions of AM.
On the contrary, as Ms Kralj repeatedly observed, AM was reticent and understated. As the judge himself rightly stated, Ms Kralj “believed the claimant”. That belief, following an expert examination and assessment also constituted independent evidence of torture. Ms Kralj’s belief was her own independent belief, even if it was in part based on AM’s account. However, the judge was mistaken to suggest that such belief was merely as a result of “taking everything she said at face value”. A fair reading of her report plainly went very much further than that. If an independent expert’s findings, expert opinion, and honest belief…are to be refused the status of independent evidence because, as must inevitably happen, to some extent the expert starts with an account from her client and patient, then practically all meaning would be taken from the clearly important policy that, in the absence of very exceptional circumstances suggesting otherwise, independent evidence of torture makes the victim unsuitable for detention. That conclusion is a fortiori where the independent expert is applying the internationally recognised Istanbul Protocol designed for the reporting on and assessment of signs of torture. A requirement of “evidence” is not the same as a requirement of proof, conclusive or otherwise…” (emphasis added)
The Court went on to hold that in the absence of any exceptional circumstances, the detention had been contrary to published Home Office policy and unlawful during the period in question.
Lessons to take away
There are inherent difficulties in establishing torture by way of expert evidence where the primary source of the information inevitably is the claimant. This case contains important lessons on the preparation and assessment of such expert evidence.
Firstly, the Court of Appeal’s decision provides helpful guidance on the features of expert evidence that indicate “independence”: a clear distinction was drawn between the client’s own account and the expert’s assessment based not only on AM’s physical scars but equally crucially, a wider assessment of the claimant’s behaviour and approach in recounting her experience. A key feature of Ms Kralj’s opinion was her analysis of AM’s inability to accurately describe her experience and her tendancy to understate her suffering, which Ms Kralj noted to be consistent with torture-induced trauma.
This contrasts with the scepticism that AM’s incomplete account elicited both in the Home Office and in the Tribunal during her first appeal. Another feature in Ms Kralj’s report which the Court put considerable weight on was her adoption of internationally recognised standards set out in the Istanbul Protocol (the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment), which provides guidance on the examination and evaluation of signs of torture.
Secondly, the case highlights the significance of expert evidence on torture, where the claimant’s account is incomplete or vague, as that may very well be the result of trauma rather than a lack of credibility or a deliberate effort to mislead – as AM was initially accused of. It can make the difference between a successful asylum claim and a ‘hopeless’ one.
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Lucy Kralj is not “a wound and scar expert.” Her reports (there were two) were later supported by one by Dr Frank Arnold (incorrectly referred to in the judgement as being a Medical Foundation doctor) who is such an expert. Significantly, Lucy Kralj is a specialist nurse practitioner. An important side issue in this case is who may provide “independent evidence.” The implicit point is that expertise in such matters arises from experience and training, not titles. The requirement for a ‘Consultant’ seems to be the default in instructing medical experts, but a consultant may have little or no experience in the particular field (in this case refugee health) or training (in, for example, the Istanbul Protocol).
I would also point out that the Home Office argued, in rejecting the fresh claim, that “if [AM] had been detained and tortured as claimed, then the precise circumstances of these events would have been so searing as to have engraved” upon her memory. This statement completely fails to appreciate the now well established impact of torture upon memory. (J Herlihy et al and J Cohen refers.)
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