KV relied on medical evidence in an asylum appeal. His expert explained why the pattern of his scars fitted his account of torture. The Supreme Court held that an expert could address that consistency and that the tribunal had mishandled an alternative explanation. The tribunal had to hear the appeal again.
The claim and the scars
KV applied for asylum in the United Kingdom. He said he had been detained and tortured by government forces in Sri Lanka.
The scars had been caused by contact with hot metal. The disputed point was whether the pattern supported his account of what happened or whether, as the tribunal considered, someone else might have inflicted the injuries at his request.
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The decisions below
The Home Office refused asylum in March 2011, relying on perceived inconsistencies and the lack of medical evidence. The First-tier Tribunal dismissed his appeal. The Upper Tribunal found an error of law and directed a rehearing before three experienced judges, with the Helen Bamber Foundation intervening.
The Upper Tribunal accepted that KV had given a broadly consistent account and that the country evidence supported the possibility of this form of torture. It nevertheless doubted aspects of his evidence. The medical evidence was therefore important to the assessment of the claim as a whole.
The doctor explained that differences between the groups of scars were consistent with KV’s account of being conscious at one stage and unconscious at another. Using the Istanbul Protocol’s scale, he regarded the findings as highly consistent with that account. That was an opinion on medical consistency, a different question from whether the account was true.
The tribunal concluded that the medical evidence left two real possibilities, torture or wounding by proxy. It held that the torture claim did not withstand scrutiny. It said the evidence did not inexorably point to wounding by proxy, but that this was the only real possibility it had not discounted, so KV had not shown his account to be reasonably likely to be true. It then found that after 2003 he had remained in Colombo and had never come to the adverse attention of the army or police. Lord Wilson questioned that disclaimer: rejecting one of only two real possibilities, in absolute terms, necessarily treats the other as what happened.
By a majority, the Court of Appeal dismissed KV’s further appeal. Sales LJ, with whom Patten LJ agreed, said that Dr Zapata-Bravo had exceeded his role by relating “highly consistent” to KV’s story rather than only to the immediate mechanism of a heated rod. Elias LJ dissented and would have sent the appeal back. The Court of Appeal also directed that general guidance issued by the tribunal to doctors reporting on scars be treated as of no effect. The Supreme Court was not asked to review that direction.
What a doctor may say
The Home Secretary did not defend the majority’s observations, and the Supreme Court held them to be wrong. A decision-maker may receive help from a doctor who, within his or her expertise, gives an opinion on the consistency between the clinical findings and the asylum-seeker’s account of the circumstances in which the scars were sustained. That opinion is not limited to the mechanism. Confirming that a hot rod caused the scars would have added little. The potentially valuable evidence was the doctor’s correlation between the different scars and KV’s account of when he was conscious.
Lord Wilson held that “trauma” in the Istanbul Protocol covers those wider circumstances, not merely the immediate cause of a lesion. The Protocol points the expert towards the torture account and the degree to which the findings correlate with the allegations. There is no inconsistency with the Tribunal Practice Direction. An expert must not opine outside his or her expertise, but the Direction does not specifically address the investigation of torture, where the Protocol is equally authoritative.
The court rejected a further submission that an expert may simply say that he or she believes the person was tortured. A Protocol conclusion that the appearance could not have been caused in any other way is tantamount to belief in the description, and a conclusion that it could not have been caused as described is tantamount to disbelief. In the more usual middle categories, including “highly consistent”, the Protocol gives no sanction for expressing belief. Even at either extreme, credibility remains with the decision-maker after surveying all the evidence. In asylum the question is only whether there is a real possibility that the account is true, not whether the decision-maker believes it overall.
Why the tribunal’s reasons were flawed
Lord Wilson, with whom Lady Hale, Lady Black, Lord Briggs and Lord Kitchin agreed, reviewed three points. He agreed with Elias LJ that the second and third undermined the dismissal.
First, the tribunal asked how KV could have stayed unconscious while his back was burned. No written report estimated the time required. At the end of his telephone evidence, Dr Zapata-Bravo suggested ten minutes but said this was speculative. He answered hesitantly that prolonged unconsciousness might have been possible if KV had been in poor health, had lost weight through malnutrition, and had neither eaten nor taken fluids. Dr Allam had written that health could affect the speed of recovery. The tribunal called this an unlikely hypothesis. Lord Wilson thought it hard to say that the tribunal was not entitled to regard that part of the account as unlikely, but that finding could not end the wider inquiry into whether the scars might reflect torture.
Secondly, the tribunal rejected the “highly consistent” opinion by summarising the doctor as saying that precise edges made unconsciousness necessary for the scarring, and that KV was unlikely to have remained unconscious throughout burns to both his arms and his back unless anaesthetised. That missed his distinction. The precise edges concerned the back, and neither he nor KV had said that KV was unconscious while his arm was burned. Sales LJ had suggested that the oral evidence must have changed. Lord Wilson said an appeal court should not assume that an apparent mistake is explained by oral evidence which the judgment does not record. A later transcript showed, and it was agreed, that the doctor never departed from the difference between the scars or its significance. The tribunal had mislaid the difference it needed to explain. Elias LJ’s conclusion, adopted by Lord Wilson, was that it could not treat the torture account as implausible without explaining the different appearance.
Thirdly, the two possibilities had to be compared before either was discounted. Evidence of extensive torture in Sri Lanka in 2009, including burning with soldering irons, was well established. Evidence of asylum-seekers arranging for another person to wound them was almost non-existent: the tribunal cited one unreported decision in 2011, and Dr Zapata-Bravo and colleagues he had consulted had not encountered it in immigration cases. A person might occasionally burn himself, but not the relevant parts of his own back. The literature contained only a statement that, very rarely, an accomplice might be asked to wound a place the person cannot reach.
The tribunal was right to consider the possibility, given its serious doubts about other parts of KV’s evidence. But causing oneself deep injury and protracted pain is extreme; KV would have needed help; such wounding is generally so unlikely; the back wounds would have required anaesthetic and therefore a medically qualified person willing to breach medical ethics; and explanations would have been needed both for the different scars and for their number. Elias LJ observed that one or two strategically placed scars would equally have supported a torture claim. In the concluding section where it discounted torture, the tribunal did not refer to that unlikelihood.
Verdict: The Court unanimously allowed the appeal and ordered the Upper Tribunal to decide the asylum appeal afresh. It made no finding that KV had or had not been tortured and did not grant asylum.
Source: KV (Sri Lanka) v Secretary of State for the Home Department [2019] UKSC 10
