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

Summary

The Supreme Court found that when considering the likelihood that a person’s scars were “self-inflicted by proxy” (‘SIBP’) i.e. that they were inflicted by another person at the request of the person with the scars, very considerable weight should be given to the fact that injuries which are SIBP are likely to be extremely rare.

Background

KV, a Sri Lankan national of Tamil ethnicity, claimed asylum in the UK in 2011. He had scars on his arm and back. KV’s account was that he was not a member of the LTTE (‘Tamil Tigers’) but he had worked in his father’s jewellery shop and had assisted the Tamil Tigers by valuing their jewellery and melting their gold.

He said he was detained by the Sri Lankan government and tortured. He said the government officials had applied hot metal rods to his arm while he was conscious; that the pain had rendered him unconscious; and that, while he remained unconscious, they had applied rods to his back. The SSHD’s case was that the scars on KV’s back and arm were inflicted by another person at KV’s request.

The Upper Tribunal found various aspects of KV’s evidence unconvincing but identified the central issue as follows: “if the appellant’s scarring was caused by torture in detention then the possibility of the appellant’s account being true, notwithstanding the identified shortcomings, becomes a real one”.

Dr Zapata-Bravo, a medical expert, advised that the scars were caused by burning with a hot metal rod. The doctor noted that the scars on KV’s back had precise edges. This sort of perfect branding could not have occurred while KV was conscious as his reflect reaction to pain would have blurred the edges of the scar. However, the scars on his arm were different; the edges were blurred. This indicated that he had been conscious while the rods were applied to his arm. The doctor concluded (applying the Istanbul Protocol), therefore, that his clinical findings were “highly consistent” with KV’s account of torture, and that it was unlikely the scars were SIBP.

The Upper Tribunal nevertheless dismissed KV’s appeal. The Court of Appeal held by a majority that the assessment made by the Upper Tribunal was legitimately open to it and could not be criticised as perverse or irrational. It was beyond Dr Zapata-Bravo’s remit as an expert medical witness to state his opinion that his findings were “highly consistent” with KV’s account of torture as a whole. Elias LJ gave a dissenting judgement.

Judgment

Istanbul Protocol

The Supreme Court found that, in concluding that his clinical findings were “highly consistent” with KV’s account, Dr Zapata-Bravo framed his conclusion in accordance with the Istanbul Protocol.  In the Supreme Court, the SSHD felt unable to defend the majority of the Court of Appeal’s observations that Dr Zapata-Bravo had gone beyond his remit. In their difficult task of analysing whether scars are the result of torture, decision-makers can legitimately receive assistance from medical experts who feel able to offer an opinion about the consistency of their findings with the asylum-seeker’s account about the circumstances in which the scarring was sustained, not limited to the mechanism by which it was sustained. When Dr Zapata-Bravo correlated his findings of a difference in the presentation of the scars on the back and the arm with KV’s account of how the alleged torture had proceeded, he was giving assistance to the Tribunal of significant potential value.

In the Court of Appeal, Sales LJ had said that the primary source of guidance for experts in such circumstances should be the Tribunal Rules and the Practice Direction rather than the Istanbul Protocol. The Supreme Court found that there was no inconsistency between the Practice Direction and the Istanbul Protocol and the Practice Direction does not address the specific area addressed by the Protocol, namely the investigation of torture.

The Upper Tribunal’s flawed reasons

Lord Wilson discussed three of Elias LJ’s criticisms of the Upper Tribunal’s reasons. First, the Upper Tribunal had found it to be unlikely that KV did not regain consciousness for a period of about ten minutes when the alleged torturers inflicted the burns on his back. This is despite Dr Zapata-Bravo giving an explanation for this prolonged unconsciousness. Lord Wilson found that the Court of Appeal was entitled to find this part of KV’s account “unlikely” however he said the conclusion on this point did not mark the end of the enquiry.

Second, Elias J had noted that the Upper Tribunal’s summary of the doctor’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. In doing so, the Upper Tribunal had mislaid the difference between the scars on the arm and the scars on the back to which Dr Zapata-Bravo had attached so much significance. Elias J concluded that the Upper Tribunal had to find an explanation for the different appearances of the scars and it could not characterise KV’s account of being tortured as implausible without having done so. Lord Wilson agreed with this assessment.

Third, when the Upper Tribunal concluded that there were only two real possibilities – either that KV had been tortured or that the wounding was SIBP – and when it rejected the former, it failed to take into account the fact that self-infliction of wounds is inherently unlikely. There is evidence of extensive torture by state forces in Sri Lanka at the relevant time. By contrast, evidence of wounding SIBP on the part of asylum-seekers is almost non-existent.

In light of KV’s lack of credibility, the Supreme Court found that the Upper Tribunal was correct to address the possibility of SIBP. However, in assessing the strength of the possibility, it had to give weight to the following at §34:

(a) It is an extreme measure for a person to decide to cause himself to suffer deep injury and severe and protracted pain.

(b) Moreover KV needed someone to help him to do it.

(c) Wounding SIBP is, in the words of Sales LJ at para 93 of his judgment, “generally so unlikely”.

(d) If KV’s wounding was SIBP, the wounds on his back could have been inflicted only under anaesthetic and so he would have needed assistance from a person with medical expertise prepared to act contrary to medical ethics.

(e) If his wounding was SIBP, an explanation had to be found for the difference in both the location and in particular the presentation of the scarring as between the back and the arm.

(f) If his wounding was SIBP, an explanation had to be found for the number of the wounds, namely the three wounds on the back, albeit now represented by five scars, and the two wounds on the arm. As Elias LJ observed in para 99, “one or two strategically placed scars would equally well have supported a claim of torture”.

The Supreme Court approved Elias LJ’s view that very considerable weight should be given to the fact that injuries which are SIBP are likely to be extremely rare and directed the Upper Tribunal to determine KV’s appeal afresh.

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