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In SA (Somalia) [2006] EWCA Civ 1302, concerning alleged torture, the Court of asad-khanAppeal 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 paras 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 [2008] 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 [2008] 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:

  1. … 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.

(ii) Disposal

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:

  1. … 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”.

Comment

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.

Please see Part One here.

This article was originally posted here.