What is the correct approach to assessing medical evidence in asad-khanasylum claims alleging torture?

The Supreme Court recently considered the correct approach to the assessment of medical evidence in asylum claims alleging torture. In KV (Sri Lanka) [2017] EWCA Civ 119, Elias, Patten and Sales LJJ held that the decision in KV (scarring – medical evidence) Sri Lanka [2014] UKUT 230 (IAC) was justified to the extent that the UT rejected a Sri Lankan asylum-seeker’s account that five scars on his back inflicted by a hot metal rod had been caused by torture administered by the Sri Lankan authorities and in inferring that it was self-inflicted. On the other hand, the Court of Appeal clarified that the guidance given by the UT on how medical evidence should be presented in “self-infliction by proxy” (SIBP) cases needs to be treated as having no effect. SIBP means that KV might have arranged to have these burn scars inflicted on himself by someone else whilst under general anaesthetic. After considering the medical evidence provided by KV’s experts, the UT issued guidelines for medical experts to take into account regarding the issue of SIBP when preparing expert evidence for use in asylum cases. Giving the main judgment, 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. KV claimed to have been detained, beaten and tortured between 2009 and 2011 by the Sri Lankan authorities for links to the Tamil Tigers/LTTE.

He arrived in the UK in 2011 and claimed asylum but his claim was refused because his account was disbelieved. KV was not a fighter. His father was a jeweller in Trincomalee who helped the LTTE through his business in 2002 and KV began to work for the LTTE in 2003 by valuing jewellery for them. He also helped dig bunkers and transport food. Surging levels of violence meant that he escaped Sri Lanka on a French passport and arrived in the UK to claim asylum where his two brothers and uncle lived. The FTT dismissed KV’s appeal because his claim “lacks credibility in all material respects”. The UT considered SIBP in general terms. Expert evidence in relation to causation was given by many medical experts who addressed whether the scars on KV’s back could have been inflicted without general anaesthetic, and if so, what his level of consciousness might have been at the time. The UT took the view that it was clinically unlikely that KV could have fallen unconscious after the first burn and remained unconscious during the time the other burns were inflicted. It judged that the medical evidence failed to resolve causation but that such evidence still narrowed things down to two possible causes, i.e. torture or SIBP.

The UT concluded that since SIBP was the only possibility that it had not been able to discount, taking the evidence as a whole KV had not demonstrated that his account was reasonably likely to be true. The judges also imparted guidance that medical experts should routinely consider the issue of SIBP in their reports where this was a real possibility. Upon further appeal, KV tried to adduce fresh medical evidence to corroborate his account.

The Court of Appeal judged that it was inappropriate to admit fresh evidence in the form of a report by one Dr Juliet Cohen (Head of Doctors at Freedom from Torture) because the said expert could have been identified and selected prior to the UT hearing since both parties had known that the concept of SIBP would be examined. There was no proper basis on which the new evidence was admissible on appeal and Sales LJ found that:

  1. … The strong inference from the way in which her evidence is now put forward is that she has been asked to provide an expert report in an effort to plug holes which opened up in the appellant’s case as a result of evidence given by the expert witnesses whom he did decide to call.

Thus, the court found that admitting the fresh evidence would contradict the overriding objective. Sales LJ was unconvinced that the criteria set out in Ladd v Marshall [1954] EWCA Civ 1 – intended to reflect the balance of justice in relation to applications to admit fresh evidence – had not been satisfied and KV was unable to demonstrate that evidence such as Dr Cohen’s report could not have been obtained with reasonable diligence for use earlier.

As to the merits of the appeal, Patten and Sales LJJ declined to interfere with the UT’s decision. Elias LJ dissented on the point, but the majority held that the UT had been entitled to reach the conclusion that it did. KV’s criticism of the UT’s evaluation of the medical evidence was no more than mere disagreement with the UT’s factual findings. Without a doubt, infliction of scarring of the kind found on KV’s body by SIBP would be highly unusual. Without anaesthetic, it would be very unlikely because of the pain involved. With anaesthetic, in Sri Lanka it would require a co-operative doctor willing to proceed in a clandestine matter.

The Home Office possessed no country information to suggest that this would be common. But there was reference to a couple of tribunal decisions in which other tribunals had thought that SIBP was a real possibility. However, in assessing the credibility of KV’s account of how the scars on his body came to be inflicted, the UT had been justified in highlighting implausible aspects of his account when assessed against the medical evidence. Notably, it was not incumbent on the UT to come up with a definitive alternative account.

Sales LJ said that the correct approach to the instruction of experts, their role, and the contents of their reports was set out in the Practice Direction of the Immigration and Asylum Chambers of the First-tier and Upper Tribunal.

The court explained that responsible expert witnesses instructed in accordance with the Practice Direction could be relied upon to present their evidence in a neutral and balanced way. Thus, further guidance from a court or tribunal was unlikely to be of much value and so the guidance issued by the UT had to be treated as having no effect.

The court also considered the effect of the Istanbul Protocol issued in 2004 by the OHCHR on a medical expert’s function on the approach to be adopted by the Home Office or the FTT in assessing whether an asylum-seeker would face a real risk of serious ill-treatment on return to his country. The intervener, the Helen Bamber Foundation, submitted that under the Istanbul Protocol guidance the medical expert is to express an opinion if they can on the wider question of whether they believe the complainant’s story about whether they were tortured or not. Rejecting the argument, Sales LJ noted that the Protocol focuses on the question of the likely immediate cause of a lesion or wound on the body of the complainant which is a proper subject for expert medical evidence. Moreover, it was the court’s view that experts should adhere to the tribunal procedure rules and practice directions and not stray from the core areas requiring their input by digressing into areas of evidence and facts outside their expertise, terrain which is properly for the tribunal’s assessment.

The court also added that rather than the Protocol, the guidance in Karanakaran [2000] EWCA Civ 11 governs the approach which the Home Office or the tribunal should adopt in assessing whether an asylum-seeker would face a real risk of serious ill-treatment on return to his country. Sales LJ said that due regard to its provisions may well be appropriate at times:

  1. … but the Istanbul Protocol is not the governing or determinative legal code for such cases.

Elias LJ agreed that it was unnecessary to lay down any guidelines beyond the guidance given in para 10 of the Practice Direction which was enough to ensure that relevant, reliable and objective expert evidence is given to the court and that if there is a serious issue that SIBP might explain certain injuries, the expert will address that possibility. He equally agreed with Sales LJ’s convincing and cogent reasons why it was inappropriate to admit fresh evidence. Yet he disagreed with the disposal of the case and entered a brief note of dissent in that regard.

The UT’s conclusion that there was a very strong likelihood that KV’s injuries were attributable to SIBP was not satisfactorily reasoned and did not have a sound evidential basis. In a strict sense, since it had only been required to negate torture as a realistic cause, the UT had not made a finding that the scars were SIBP. Elias LJ explained that in light of the lower standard of proof in asylum cases expressed in Karanakaran, a finding that torture is not a likely explanation to the lower standard of proof, coupled with the finding that it was either torture or SIBP, compelled the conclusion that the scars were SIBP. In his Lordship’s view, the evidence was, in critical respects, too equivocal or ambiguous to justify such an inference and the matter should have been remitted to a fresh tribunal.

Since the experts thought that the burns on KV’s arms were inflicted when the rod was at its hottest, there was no reason to assume that the remaining scars could not have been inflicted very rapidly without the metal rod significantly cooling. The two problems with the UT’s findings were that (a) that the scarring on the arms must have occurred when KV’s was unconscious, and (b) that if he had fainted as he alleged, he must have recovered consciousness when fresh burns were inflicted.

Mr Drabble QC began his address the Supreme Court by providing photographs of KV, taken by his uncle upon his arrival in the UK which the UT had had sight of, to the Justices. He took issue with the manner in which the UT approached the evidence in this case, one which is “unusual” if not “unique” as supported by expert and other evidence. Mr Drabble QC relied on Elias LJ’s dissenting view as the starting point of KV’s case in the Supreme Court. He went on to argue that the evidence about the scars on KV’s arm and the ones on his back was not flimsy as contended by the Government.

Proceedings ended with a discussion on AH (Sudan) [2007] UKHL 49 where Lady Hale remarked that the courts should to be slow to interfere with the tribunal’s fact-finding. Although Mr Drabble QC agrees with this principle, he pressed the point that this must be done on a common sense basis because the courts should not simply assume that the tribunals had gotten everything right.

Of course, Lady Hale still stands by her comments in AH (Sudan) and an amused Lord Wilson said at the close of proceedings that Mr Drabble had concluded his submissions on “a rather provocative note.”

This article was originally posted here.