Self-inflicted torture by proxy: inherently unlikely

15 March 2019 by Michael Spencer

KV (Sri Lanka) v Secretary of State for the Home Department [2019] UKSC 10

How likely is it that an asylum seeker, in order to support a false asylum claim, invited another person to inflict him with serious burn wounds under anaesthetic?

This startling possibility – wounding “self-inflicted by proxy” (SIBP) in the jargon – was the subject of this extraordinary appeal.  The Supreme Court concluded that injury SIBP was “likely to be extremely rare.”  In the process, it gave important guidance on the treatment of expert medical evidence in asylum cases.

Background

KV is a Sri Lankan national of Tamil ethnicity. He arrived in the UK and claimed asylum promptly. His account was that he had worked for the Tamil Tigers melting gold and that he had been detained and tortured by the army, who sought to extract information about where the gold was kept. 

In his asylum interview, he presented photographs showing that he had five long scars on his back and two shorter scars on his right arm.  He claimed that his torturers applied hot metal rods to his arm while he was conscious, the pain had rendered him unconscious, and while he remained unconscious they applied the rods to his back. 

The Upper Tribunal, which came to consider his appeal de novo, found various aspects of his broader story lacked credibility. However, it carefully considered whether his account of torture could be supported by medical evidence.  Given the nature and position of the scarring, the only other plausible alternative was that the scars were SIBP. 

KV provided expert evidence from a clinical specialist in torture who concluded that the hypothesis of the wounds being SIBP was unlikely.  Since the scars on his arms were blurry, while those on his back were straight edged, the latter must have been inflicted while he was unconscious, which was “highly consistent” with KV’s account of the torture.  However, in cross examination, the expert suggested that the burns would have taken ten minutes to inflict overall.  The Tribunal, on the basis of other medical evidence, considered it “clinically unlikely” that a person could remain unconscious for that period of time while inflicted with severe pain.  This, together with the credibility issues, meant that KV had not established to the lower standard of proof that he was a genuine refugee.

The Court of Appeal

The Court of Appeal dismissed KV’s appeal.  Sales LJ for the majority held that the Tribunal was entitled to reach the conclusion that it did on the evidence before it.  Although there were gaps in its treatment of the evidence, these would have been dealt with in cross examination and there was no transcript to verify either way.  He also suggested obiter that KV’s expert had gone beyond his remit by opining that his findings were “highly consistent” with KV’s account of torture.  He considered that the expert had departed from the guidance given in the UNHCR’s “Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading treatment or Punishment” (the Istanbul Protocol) and the Tribunal’s Practice Directions of the Immigration and Asylum Chamber.

Elias LJ gave a dissenting judgment. He would have allowed the appeal on the basis that the Upper Tribunal had failed to explain how its conclusion was consistent with the fact that the scars on KV’s arm appeared different to those on his back and failed to appreciate that wounding SIBP was “likely to be extremely rare.” 

The Supreme Court

The Supreme Court granted permission to appeal on the basis that Sales LJ’s “controversial observations” on the treatment of torture evidence raised an issue of public importance.  It then went on to consider whether the Tribunal had erred in law.  Lord Wilson gave the sole judgment.

The Istanbul Protocol

Lord Wilson criticised two aspects of Sales LJ’s observations on the treatment of medical evidence in torture cases. 

First, Sales LJ had adopted an overly narrow interpretation of the Istanbul Protocol.  This guides medical experts to indicate the degree of consistency of each lesion with the “trauma described” by the patient.  Sales LJ had wrongly suggested that the word “trauma” is confined to the mechanism by which the injury is said to have been caused (i.e. in this case, burning by hot rods).  Lord Wilson disagreed: an expert is entitled to correlate his findings on the nature of the scars with the patient’s overall account of how the alleged torture had proceeded (i.e. whether the appellant was initially conscious then fell unconscious after the burning on his arms). In doing so, the expert was giving potentially valuable assistance to the tribunal.

Second, Sales LJ wrongly suggested that medical experts in torture cases should be guided by the Tribunal’s Practice Direction and not by the Istanbul Protocol.  There was no inconsistency between the two: experts must comply with the Practice Direction, but, when asked to investigate an allegation of torture, they should also recognise the Protocol as “equally authoritative.”

However, Lord Wilson rejected a submission by the intervener (the Helen Bamber Foundation) that in alleged cases of torture experts are entitled to express the view that they believe that the person has suffered the torture.  Although expressing an opinion that scarring is “diagnostic of” or “not consistent with” an account of trauma would be tantamount to belief or disbelief in its accuracy, the conclusion about credibility should nevertheless always rest with the decision-maker following a critical survey of all of the evidence.

Disposal of the appeal

The Supreme Court allowed KV’s appeal, Lord Wilson essentially endorsing Elias LJ’s dissenting criticisms of the Tribunal’s reasoning. 

The Upper Tribunal had failed to grapple with the consequence of its conclusions.  If an inquiry leads it to conclude that there are only two real possibilities and the Tribunal rejects one of them, then it is “necessarily concluding that the other real possibility represents what happened.”

The majority of the Court of Appeal, for its part, had wrongly assumed that gaps in the Tribunal’s reasoning would have been dealt with in cross-examination.  Lord Wilson commented:

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 purpose of the appeal.  The court of first instance should be expected to record the oral evidence on which it places reliance.

This is potentially helpful for appellants in reasons challenges, particularly if there is no transcript available and it is not clear on the face of the judgment or the written evidence how the Tribunal has reached its conclusion.  It cannot be assumed that the matter was dealt with in cross examination.

As to the possibility of wounding SIBP, Lord Wilson affirmed that the Upper Tribunal had “undoubtedly been correct”, in the light of KV’s serious lack of credibility, to address it.  But in addressing the strength of that possibility, it also had to consider the unlikelihood that a person would deliberately cause himself deep injury and find someone with the medical training willing to anaesthetise him in contravention of medical ethics.  There was extensive evidence of torture by state forces in Sri Lanka in 2009.  By contrast, evidence of wounding SIBP on the part of asylum-seekers was

almost non-existent. 

Comments

It is to be hoped, in the light of the Supreme Court’s ruling, that future determinations that apparent torture wounds have been SIBP will be very rare indeed.  In his dissenting judgment in the Court of Appeal, Elias LJ commented that such a finding would only really be appropriate where the appellant’s account is “actually false”, such as where there was incontrovertible evidence that he was not in the country when the alleged torture was said to have occurred.

The Supreme Court’s clarification of the Istanbul Protocol and confirmation that it is equally authoritative to the Practice Direction will also be welcome to lawyers and experts dealing with asylum claims involving torture evidence.  As Sonya Sceats from Freedom from Torture comments, the

judgment emphatically reasserts the role of the medical expert in assessing evidence of torture in asylum claims.

Michael Spencer is a pupil barrister at One Crown Office Row.

Neil Sheldon QC appeared for the Secretary of State for the Home Department in this case. He was not involved in writing this post.