KV (Sri Lanka) v Secretary of State for the Home Department [2017] EWCA Civ 119

[2017] EWCA Civ 119

Case No C5/2014/3914

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)

AA047342011

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 07/03/2017

Before

LORD JUSTICE ELIAS

LORD JUSTICE PATTEN

LORD JUSTICE SALES

Between

KV (Sri Lanka)Appellant

Secretary of State for the Home DepartmentRespondent

Helen Bamber FoundationInterested Party

Richard Drabble QC, Ronan Toal and Charlotte Bayati (instructed by Birnberg Peirce and Partners) for Appellant

Neil Sheldon (instructed by Government Legal Department) for Respondent

Stephanie Harrison QC, Shivani Jegarajah and Ali Bandegani (instructed by Freshfields Bruckhaus Deringer LLP) for Interested Party

Hearing Hearing dates: 17&18 January 2017

Judgment Approved

Sales LJ:

[1]This is an appeal from the decision of the Upper Tribunal (UT Judges Storey, Dawson and Kopieczek) (“the UT”) promulgated in 2014 - KV (scarring – medical evidence) Sri Lanka

[2014] UKUT 230 (IAC)

- whereby it re-made the decision on the appeal of the appellant against the decision of the Secretary of State refusing his claim for asylum, with the consequence that he should be removed to Sri Lanka, and dismissed that appeal. The appellant claims that he was tortured by the government authorities in Sri Lanka while in detention there between 2009 and 2011 during the former civil war, but that he managed to make his escape from detention and leave Sri Lanka by plane in 2011. He claims that he would face a real risk of persecution or serious ill-treatment if now returned there, on the grounds that there is a real possibility that the authorities would regard him as having been actively involved with the LTTE (known as the Tamil Tigers), the opposition in the civil war, and would by reason of that target him for ill-treatment if he went back to Sri Lanka.

[2]The appellant’s body is scarred on his back and upper right arm from what medical evidence indicates was the application of a heated metal rod. There are five scars on his back, which from their pattern are probably indicative of a lengthy heated metal rod being laid three times across his back with partial healing of what were originally three scarring burns. From their position, these scars could not have been inflicted by the appellant on himself. They are neat and sharply defined.

[3]There are two scars on the appellant’s arm. These are sharply defined in a similar way, so as to indicate that they too were probably inflicted by application of a heated metal rod, but the scars are less neat in appearance, which indicates that either the appellant’s body moved while they were inflicted or they were inflicted with less care than the scars on his back.

[4]An issue arose in the case whether the appellant might have arranged to have these burn scars inflicted on himself by someone else whilst under general anaesthetic, in what was referred to as “self-infliction by proxy” (“SIBP”). The UT took this case to be a suitable vehicle for consideration in general terms of the issue of SIBP as it might affect claims for asylum and having heard expert medical evidence bearing on the appellant’s case it proceeded to issue guidelines for medical experts to take into account regarding the issue of SIBP when preparing expert evidence for use in asylum cases.

[5]The UT had to assess the overall credibility of the appellant’s account of what had happened to him in Sri Lanka, including his claims to have been tortured, in order to assess whether he would be subject to a real risk of ill-treatment if returned there now that the civil war has finished. Its assessment was carried out in the light of the latest country guidance case, which assesses the risk position for persons returning after the end of the civil war, and following the appropriate holistic or overall evaluative approach to assessment of future risk in light of claims by the asylum-seeker of what happened to him set out in the well-known authority of Karanakaran v Secretary of State for the Home Department

[2000] 3 All ER 449

, CA.

[6]A helpful summary of appellant’s account is set out in a previous UT decision of 7 September 2012, as follows:

“The appellant … arrived in the United Kingdom unlawfully and applied for asylum on 14 March 2011 based on a fear from the authorities because of his previous support as a Tamil for the LTTE. This had led to his detention following the surrender of many LTTE supporters in May 2009. The appellant was taken to Pambamadu detention camp where he was tortured and held until his escape with the assistance of a member of the EPDP who smuggled him out of the camp concealed in a lorry in February 2011. The appellant relies on scarring as evidence of that detention and torture. … As to the appellant’s account, in summary, his father was a jeweller in Trincomalee. The appellant’s father helped the LTTE through his business in 2002. The appellant started working for the LTTE in 2003 by valuing their jewellery they brought to him and he also helped dig bunkers and transport food. He started work as a jeweller in 2007 (the precise chronology is uncertain). In addition to this work the appellant pursued a course of study in Colombo where he lived in a house owned by his parents together with two LTTE members although their reason for being in Colombo is not clear. The appellant had previously made three unsuccessful applications for entry clearance to come to the United Kingdom as a student on 6 October 2006, 13 October 2006 and earlier on 27 June 2005. His case is that in the aftermath of an LTTE attack on Colombo Airport on 25 March 2007, one of the Tamils with whom he lived was arrested and the other had received a message from Vanni for him to return (it appears from the LTTE). The appellant decided to accompany him as he knew the authorities would be after him. There was no evidence of the appellant having previously encountered any difficulties from the authorities. On arrival in Vanni, the appellant stayed with his father’s brother who was an LTTE member and started to help them. He ceased helping them in 2008. His arrest, as described above, followed on 10 May 2009 leading to his detention in Pambamadu. The EPDP member who facilitated his escape (called Sasi) had made contact with the appellant’s parents. On his escape, the appellant was provided with a false Sri Lankan ID card in the name of a Muslim. He journeyed to Negombo where he was given a French passport and was accompanied by the agent through checks at the airport and who informed him not to claim asylum in France. He claims to have arrived in the United Kingdom on 24 February 2011. The agent called his uncle in the United Kingdom and after he was dropped off, that uncle made an appointment with the Home Office for the appellant to claim asylum. The appellant’s mother’s two brothers are also in the United Kingdom.”

[7]The UT constitution which made the decision now under appeal found that there were many implausible or incredible elements in the factual account of the appellant in relation to his alleged relationship with the LTTE, how he had allegedly been picked up and detained by the authorities, how he had allegedly been treated in detention and how he said he had made his escape and then succeeded in leaving Sri Lanka. The UT’s assessment was that the appellant would not be of significant interest to the Sri Lankan authorities if returned there and there would not be a real risk of his ill-treatment at their hands if he were returned.

[8]Mr Drabble QC, who appears for the appellant on this appeal, does not suggest that there was anything improper or unlawful in the UT’s assessment of the appellant’s factual account. It is worth pointing out that the UT judges who sat on this appeal are experienced and expert in dealing with cases of this sort. Since there is no challenge on this appeal to the UT’s assessment of these aspects of the appellant’s account it is not necessary to go into them for present purposes. The full detail is set out in the UT’s judgment. Clearly, without the scarring on his back and arm, the appellant’s asylum claim appeal would have been dismissed by the UT and for perfectly proper reasons.

[9]On this appeal, however, the appellant contends that the UT erred in its assessment of the significance of his scarring and the medical evidence in relation to his case. He also makes an application to adduce additional medical evidence in support of his asylum claim.

[10]In addition, the Helen Bamber Foundation (“HBF”), a charity which campaigns against torture and provides assistance to asylum-seekers, was given permission to intervene in the UT and in this court. In this court, Ms Harrison QC for the HBF supported the submissions made by the appellant and contested the guidelines issued by the UT on assessment of injuries said to have been the result of SIBP. The guidelines are set out in an annex to this judgment.

The procedural background and the UT’s judgment

[11]The appellant is a national of Sri Lanka born in 1982. He arrived in the United Kingdom using a false passport on 24 February 2011. On 14 March 2011 he claimed asylum and had a screening interview. He was interviewed again on 22 March 2011. The Secretary of State did not accept his account of his treatment in Sri Lanka, including his claim that he had been tortured; nor did she accept his claim that he would be at real risk of serious ill-treatment if returned to Sri Lanka, and dismissed his asylum claim.

[12]The appellant appealed to the First-tier Tribunal (“FTT”). In support of his appeal he adduced a medical report from Professor Sundara Lingam. The appellant’s account to Professor Lingam was that he suffered all the burns on one day from application of heated metal rods, and that he felt pain and fainted. Professor Lingam stated in his report, in the proper way, that he understood his duty was to help the court and that this overrode any duty to the appellant, and that he had endeavoured to include in the report any matters which might adversely affect the validity of his opinion. He also stated that he had followed the provisions of the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment issued by the Office of the United Nations High Commissioner for Human Rights in 2004, known as “the Istanbul Protocol”.

[13]Professor Lingam examined the scars, found that they all showed marked hyperpigmentation as one would expect from burn scars, which was highly consistent with the appellant’s account of being beaten with heated metal rods. He noted, “All these scars are similar in appearance and therefore one would come to the conclusion that they were all caused at nearly the same time and by the same mechanism”. He considered possible alternative causes for the scars and concluded that they could not be self-inflicted by the appellant himself because of their location on his body (I think this is a reference to the scars on the appellant’s back). Professor Lingam then considered whether the scars were caused deliberately to mislead, and said there was “no way I could scientifically differentiate between the wounds inflicted deliberately from the wounds inflicted from the said torture.”

[14]In a decision promulgated on 18 May 2011 the FTT dismissed the appellant’s appeal. The FTT judge found that the appellant’s account of what had happened to him in Sri Lanka “lacks credibility in all material respects”. The FTT judge noted the latter statement quoted above from Professor Lingam’s report and opined, “There must be a method by which injuries capable of being inflicted on the appellant by invitation to a third party to do so and injuries caused by third parties as a result of torture and detention could be differentiated”, and for that reason and because Professor Lingam had not stated what scientific tests or other means he had used to reach his opinion and had not considered whether the appellant would have been able to undertake the air journey to the UK without some form of medication or assistance, the judge found the medical report to be deficient and attached little weight to it. The FTT gave permission to appeal.

[15]In a decision dated 7 September 2012, the UT (UT Judge Dawson) allowed the appeal for error of law, because the FTT judge had erred in rejecting the medical evidence of Professor Lingam on the basis of the judge’s opinion that there must be a method to distinguish scars resulting from SIBP and scars resulting from torture, which was not a view supported by any evidence. Since the scarring and medical evidence in relation to it had the potential to meet the credibility concerns which led the FTT judge to disbelieve the appellant’s account as a whole, the error was sufficiently material to require her decision to be set aside and then remade afresh. UT Judge Dawson noted that the Tribunal is often confronted with the difficulty of deciding the cause of particular scarring, and the representative for the Secretary of State and the representative for the appellant both agreed that there would be merit in there being general guidance from the UT on i) whether it is possible to differentiate between burn scarring caused by hot rods or wires or similar heated instruments that has been self inflicted or inflicted with consent, and burn scarring caused by torture of the kind described by the appellant as having occurred during detention; ii) whether it is possible to determine from the nature of such scarring if someone has had any form of medical intervention or treatment and if so of what kind; and iii) whether it is possible and with any precision, to age such scarring by any means.

[16]UT Judge Dawson then gave directions for a case management conference to take place after the parties had considered what expert evidence should be called on these issues. The parties were directed to liaise and identify a joint expert or experts, whose identities and qualifications could be reviewed at the case management hearing. The UT was to remake the decision itself, rather than remitting it to the FTT.

[17]In the event, the case management conference was postponed for a considerable time and the experts were not instructed on a joint basis, but by the appellant alone. The Secretary of State called no expert evidence. We were not told why there was this departure from the UT’s directions.

[18]The hearing before the UT took place on 3 and 4 February and 3 March 2014, with additional expert evidence from an anaesthetist, Dr Sonia Allam, being submitted in writing some 14 days later, pursuant to a direction given by the UT in the course of the hearing.

[19]The UT heard evidence from the appellant, both by witness statement and orally, in which he gave his account of what had happened to him in Sri Lanka. His account of the conditions of his detention between May 2009 and February 2011 was that he was kept in a cell with about 10 other prisoners; the floor was bare concrete and there was no bedding; the room smelt strongly of body odour and urine from time to time and the detainees’ clothes were badly soiled; there was no toilet in the room (they were taken to use one elsewhere); but they were allowed to use the same water from a large vat to wash themselves, such that if you were among the last to use it the water was dirty. He said he was allowed to bathe first after he was tortured; was given a fresh T-shirt to put on; and had to wear that T-shirt “for quite some time” afterwards. This evidence was of significance for the UT, because of the absence of infection in relation to the scar wounds on the appellant’s back and arm.

[20]According to the appellant, the burn wounds were inflicted on him by torture at the hands of the Sri Lankan authorities on a single occasion in August 2009. He felt intense pain from the first burn, which was on his right arm, and then passed out. He said that he continued to be beaten and kicked during his period of detention until he escaped in February 2011.

[21]At the hearing before the UT the appellant adduced a number of further expert reports. The experts indicated that they understood their duty to “the court”. In addition to the report from Professor Lingam, which was before the UT although he did not give oral evidence, and expert reports relating to psychological and other matters, so far as is relevant for the issues regarding the appellant’s physical injuries on this appeal there were reports from Dr Joy Odili, Dr Enrique Zapata-Bravo and Dr Frank Arnold. Their evidence was extensive and was summarised in some considerable detail by the UT. The following refers to some salient points, but is by no means an exhaustive account: i) Dr Odili is a consultant plastic surgeon. She had physically examined the appellant in 2013 for the purposes of preparing her report. She said that all the scars on the appellant’s back and arm were typical of being burned by a heated metal object such as the rod described by the appellant. The scars on the appellant’s arm were slightly darker and wider than those on his back, which could be explained by the metal rod being hottest when, on the appellant’s account, it was applied to his arm first. It was not clinically possible to differentiate between scarring caused with consent and scarring caused by torture. After a period of time (about two years) it was not possible to tell when burn scars had been inflicted. She wrote:

“The distribution of the scars and the type of scars would have required [the appellant] to have been immobilised or unconscious to deliver the burns. [The appellant] reports that he was immobilised and that he was unconscious for most of the time the burns took place. Even if he had consented to the burning, the pain would have been such that he would have to have been immobilised or he would have moved. The burn scars are so similar with no blurring or smudging.”

In her oral evidence, Dr Odili looked at photos of the appellant’s scars taken in 2011 and from the coloration said that she considered that they had been inflicted within a period of two years before that ([162]; she did not suggest that she could tell whether they had all been inflicted on a single occasion). She also said that after the burns occurred, “The appellant would have been very prone to infection – he was very lucky and may have been saved by the fact he was allowed to wash daily” ([159]); the inference is that she would have been able to tell from their appearance if the scar wounds had become infected. ii) Dr Zapata-Bravo is a consultant psychiatrist who also has expertise in the physical manifestations of torture techniques. He too had physically examined the appellant in 2013. According to the account given to him by the appellant, which was similar to that given to Dr Odili, he was held by two soldiers, saw the glowing end of a heated iron rod to his right, felt an intense pain, screamed and fell forward; “He does not remember anything else and believes that at that time he lost consciousness”; he woke up in the same place with the same interrogator and had the impression a couple of hours had elapsed, though he could not be sure; afterwards his conditions of detention did not change and he did not receive any treatment for his injuries. There was something of a tension in Dr Zapata-Bravo’s report as to his assessment of the appearance of the scars and its significance. On the one hand, for example, he stated that all the scars “present similar characteristics in colour, shape and precise delimitation”, characteristic of deep dermal burns, and the long narrow shape and “the precise margins of these marks” suggested the hot object was solid, narrow and relatively long (para. 37); and there were indications that the scar at the top of the appellant’s arm was deeper and more severe than the others, in spite of it being smaller (para. 38). His evidence was that the scars were in places the appellant could not reach and their characteristics “indicate there was immobility and a lack of reaction during a certain time, allowing for the procedure to be repeated several times”, hence he excluded self-infliction as a possible cause (para. 39). On the other hand, he also emphasised differences between the scars on the arm and on the back, with those on the arm indicating less than perfect branding unlike those on the back, which could indicate that his arm moved in reaction to pain, “due to both reflex and voluntary movements”, with one scar on the arm being deeper, possibly indicating that it was burned with a metal rod at a higher temperature; and he regarded these findings as “highly consistent” with the appellant’s account of what had happened (paras. 60-63). Elsewhere in his report, however, he appeared to suggest that the scars on arm and back were unlikely to have been produced by SIBP because it would have required “complete analgesia and immobility” to suppress the natural reflex mechanism to allow for production of scarring with this presentation; and if the appellant had only fainted the severity of the pain would have woken him and the resulting scars would have looked different (paras. 58-59 and 67-71). Dr Zapata-Bravo’s view from the appearance of the scars was that they had occurred before September 2010, but he did not suggest that he could tell whether they had all been inflicted on a single occasion. It is not for this court on an appeal to resolve the tensions which appeared to exist in Dr Zapata-Bravo’s evidence. That was a matter for the UT, which examined the medical evidence with considerable care in its judgment. Dr Zapata-Bravo gave oral evidence by telephone from Chile. In his oral evidence, he agreed that the appellant would have been at high risk of infection ([141]); his view was that “Pure shock through pain was not enough to explain the appellant remaining unconscious” during a procedure when all the burns were inflicted on his body ([147]); and he said, “Restraint whilst [the appellant] was still conscious would have meant his muscles would have contracted violently and the scars would not have been as precise as they were” ([148]). Thus on this last point Dr Zapata-Bravo appeared to say in his oral evidence that complete analgesia would have been required to produce such precisely defined scars on both his arm and his back, or at least that was an interpretation of his evidence which the UT was entitled to place upon it when he was pressed to resolve the tension in his report referred to above. We were not provided with a transcript of the evidence given at the hearing, and there is no basis for us to say that the UT was wrong about this. Exploration of the true import of expert evidence is a matter for the fact-finding tribunal. iii) Dr Arnold is a specialist in problems of wound healing. Dr Arnold was instructed by the HBF. He did not examine the appellant, but had read the reports of Professor Lingam, Dr Odili and Dr Zapata-Bravo, amongst other materials. Dr Arnold said that by the time Professor Lingam examined the appellant in 2011 burn scars inflicted in August 2009 would have fully healed (para. 8); if the burns were the result of SIBP it would be necessary for the subject to hold still, “Otherwise the edges would tend to blur as the voluntary withdrawal reflex caused them to move relative to the injurious object …” (para. 12) and for branding scars of the kind under review it would be necessary to “Immobilise or anaesthetise” the subject (para. 19); infection could be germane, as it could result in a less regular outline of the resulting scar, but he did not understand it to be a relevant issue from the information available to him (para. 16); it would be impossible to tell whether the appellant had been anaesthetised (para. 20); and, contrary to the view of the FTT judge, “there is no physical characteristic or informative method of investigation of the wounds under discussion … which should, or indeed could, have assisted Dr Lingam or any other doctor in differentiating between torture and [SIBP]” (para. 22). In his oral evidence, Dr Arnold said it was difficult to assess the effects of fainting on someone having burn scars inflicted on them because there were different levels of unconsciousness; at a shallow level muscles might still involuntarily react; he did not think one could tell from looking at scars whether a person was conscious or unconscious when they were inflicted ([114]).

[22]There were thus tensions and potential inconsistencies in the expert medical evidence, for example as to whether all the scars were similarly clearly defined to be grouped together for the purposes of analysis (Dr Odili and Dr Arnold appearing to say they were, Dr Zapata-Bravo appearing to suggest at some points they were and at other points drawing a distinction between the scars on the appellant’s back and on his arm) and as to whether it would have been necessary for the appellant to be anaesthetised for the infliction of all the scars, or at least for the infliction of those on his back. As mentioned above, this court does not have the full picture of the medical evidence given, as we do not have a transcript. Also, even with a transcript we cannot tell whether in giving their evidence orally the medical experts gave emphasis to or reduced the significance of elements of their account by the way in which they spoke. Resolution of issues arising from the medical evidence was the task of the UT.

[23]In light of the expert medical evidence it had received, the UT explains in its decision that “It became clear during the hearing that there were questions arising relating to whether there are different levels of unconsciousness” (i.e. as relevant to whether some or all the scars could have been inflicted in the absence of general anaesthesia, or whether the scars on the appellant’s back could have been inflicted while he was in a faint as a result of the pain from being burned on his arm); and the result was that “The parties agreed that this required an opinion from an anaesthetist and the Tribunal gave directions to facilitate this” ([181]). A report was obtained from Dr Sonia Allam, a consultant anaesthetist, dated 17 March 2014.

[24]Like the other experts, Dr Allam was instructed by those acting for the appellant, not jointly by the appellant and the Secretary of State. Again, the reason for this was not explained to us. Although this court asked to see the UT’s directions and the instructions to Dr Allam, these were not produced. We were told by Mr Drabble on instructions (since he, like Mr Sheldon for the Secretary of State, did not appear before the UT) that the directions were matters agreed orally at the hearing before the UT, including the questions to be asked, but were not reduced to writing by the UT. At the hearing before us, Mr Drabble undertook to provide us with the written instructions to Dr Allam. However, by a witness statement dated 30 January 2017 of Ms Charlotte Bayati, the barrister who (with Mr Nishan Paramjorthy of counsel) had appeared for the appellant before the UT, filed with the court after the end of the hearing, we were informed that Mr Paramjorthy simply sent the list of questions to Dr Allam, who was not provided with any information or documents relating to the case. This is, with respect, an odd way in which to instruct an expert witness. Ms Bayati informed us that the email account used by Mr Paramjorthy to send the instructions to Dr Allam has been blocked through lack of use and he has been unable to obtain access to it to download a copy of the instructions. It does not appear that Dr Allam was asked whether she could furnish the court with a copy of the instructions to her.

[25]Dr Allam’s report addresses six questions. She confirmed that she had read the Immigration and Asylum Chambers of FTT and UT Practice Directions as they apply to expert evidence and that her opinions represented her true and complete professional opinion on the matters to which they refer. The first four questions asked whether it would be possible to achieve anaesthesia or a similar state so that burns could be inflicted “without there being a discernible flinching of the muscles” through administration of heroin or morphine, to which she gave a nuanced answer, to the effect that it might be possible to achieve such a state by these means but emphasising that it would be extremely dangerous to try to achieve and sustain it. Question 5 asked a similar question, with reference to administration of alcohol. Dr Allam said that to achieve such a level of unconsciousness with “unresponsiveness to very painful stimulus” a massive and life-threatening dose would again be required.

[26]The sixth question was:

“If someone faints from ill treatment, how likely would he/she regain consciousness if the same pain was inflicted again?”

Her answer to this was as follows:

“A ‘faint’ or vasovagal syncope can be caused by any painful or unpleasant stimulus. I have some experience of observing patients when these stimuli have been an unwanted side effect of a planned medical intervention, not ill treatment, although I believe the mechanism would be the same. From time to time in my own patients eg during insertion of intravenous cannulae and epidurals, which they have found unpleasant, vasovagal syncope has arisen. Following lying down, consciousness was regained very quickly, usually within seconds. I believe in the above situation in question any vasovagal syncope would likely be short lived and self terminate once lying down, which is usually the case, as any upright individual would fall unless impeded. Further appropriate response to a painful and unpleasant stimulation in the individual would then likely be seen again. Other factors, such as the health/physical state of the individual, could affect the speed with which they regain consciousness or could increase the propensity for further vasovagal response.”

[27]It can be said that Dr Allam did not provide a direct answer to the sixth question, as her response supposes that the person in question falls down and regains consciousness in that way, rather than simply by re-infliction of the same pain. It could also be said that addressing this question in the abstract, without reference to the particular factual allegations in the appellant’s case (i.e. that the ill treatment in issue is application of a red hot metal rod), would potentially affect the weight to be given to any answer she might have provided. Be that as it may, Dr Allam was the appellant’s expert witness and it was open to the appellant and those advising him to seek further and more specific information from Dr Allam, or from some other expert, in answer to the sixth question had they wished to do so.

[28]The UT reviewed and accurately summarised Dr Allam’s evidence at [182]-[183].

[29]At [184] the UT referred to a letter from the appellant’s GP which referred to the GP’s records of a visit by the appellant on 13 April 2011, complaining of lower back pain and that he had been ill treated by the army in Sri Lanka by being burned on his back by hot iron rods and also by being hit there by the butt of a rifle. In relation to examination of the burn marks on his back, the GP reported “he was noted to have four dry burn marks across the back which were horizontal which may have been due to iron rods being applied. There were no signs of infection or inflammation …”. The appellant was given a combination of topical and oral analgesia and there was no record of any later visit to the surgery.

[30]The UT was taken to the Istanbul Protocol. The UT rejected the contention that the Istanbul Protocol constitutes customary international law: [222]. But the UT accepted that it has a central role, as encapsulated in the Home Office’s Asylum Policy Instruction on Medico-Legal Reports from [the HBF] and the Medical Foundation Medico-Legal Report Service: [223]-[224]. This Instruction includes this statement at para. 3.3:

“Caseworkers are required to consider all evidence in the round; including expert medical evidence and a conclusion on the overall credibility of an account of past events must not be reached without careful consideration of the contents of the Foundation’s MLR [Medico-Legal Report]. Caseworkers must have in mind the approach to assessing the credibility of past events set out in the Karanakaran judgment, which emphasises that evidence should not be excluded where someweight may be attached to it. They also need to bear in mind that the standard of proof is that of a ‘reasonable degree of likelihood’ which is lower than ‘the balance of probabilities’. … The Foundationswill not produce reports unless there is clinical evidence that is at least ‘consistent with’ the claimant’s account of torture or serious harm according to the terms used in the Istanbul Protocol. The Protocol, the central importance of which is accepted by the UK courts in the asylum context, makes clear that reports which document and evaluate a claim of torture for asylum proceedings need only provide ‘a relatively low level of proof of torture [or serious harm]’. Therefore, the Foundations’ report in support of the applicant’s claim of torture or serious harm cannot be dismissed or little or no weight attached to them when the overall assessment of the credibility of the claim is made. If a report has been produced in support of an allegation of torture or serious harm and, having considered the findings, the caseworker is minded to reject the claim to have been tortured for the reasons ascribed by the applicant because there is significant evidence that outweighs the MLR evidence in support of credibility, the case must be discussed with a Senior Case worker.”

[31]The principal focus of the Istanbul Protocol so far as investigation of torture is concerned is to establish the facts relating to alleged incidents of torture with a view to identifying those responsible and facilitating their prosecution, or for use in the context of other procedures to obtain redress for victims; but the issues addressed in the Protocol “may also be relevant for other types of investigations of torture” (para. 77 of the Protocol). Chapter V of the Protocol provides guidance regarding physical evidence of torture. Paragraphs 187 and 188 in that chapter state:

“187. The following discussion is not meant to be an exhaustive discussion of all forms of torture, but it is intended to describe in more detail the medical aspects of many of the more common forms of torture. For each lesion and for the overall pattern of lesions, the physician should indicate the degree of consistency between it and the attribution given by the patient. The following terms are generally used: (a) Not consistent: the lesion could not have been caused by the trauma described; (b) Consistent with: the lesion could have been caused by the trauma described, but it is non-specific and there are many other possible causes; (c) Highly consistent: the lesion could have been caused by the trauma described, and there are few other possible causes; (d) Typical of: this is an appearance that is usually found with this type of trauma, but there are other possible causes; (e) Diagnostic of: this appearance could not have been caused in any way other than that described. 188. Ultimately it is the overall evaluation of all lesions and not the consistency of each lesion with a particular form of torture that is important in assessing the torture story …”

[32]Paragraph 187 provides, if I may say so, a sensible form of categorisation for medical experts assessing injuries. The medical experts in this case were aware of the Protocol, save that Dr Allam did not refer to it (this is probably because of the odd and abstract way in which she came to be instructed in the case).

[33]However, I think a note of caution is in order as regards the way in which Dr Zapata-Bravo used the Istanbul Protocol categorisation in his report. At paragraph 63 he said that the appellants’ scars discussed in the report “are diagnostic of burns produced by the application of solid rods” (a view for which he gave detailed reasons and which is supported by the other experts); but he also said that “As to the possibility that they were produced by the instrument described by [the appellant] and in the way depicted by him, I should state that my findings not only do not contradict his history, but they are highly consistent with it”. In making this latter statement, Dr Zapata-Bravo seems to have moved from an assessment whether the relevant lesions (i.e. the burn scars) could have been caused by the trauma described (i.e. the application of a heated metal rod) – a matter on which he was capable of giving a view based on his medical expertise and which he had already addressed by saying that the scars were diagnostic of such trauma – into an expression of view that he was disposed to accept the appellant’s account of how heated metal rods came to be applied to his skin. Dr Zapata-Bravo seemed to use the Istanbul Protocol “highly consistent” classification, but inappropriately in relation to the appellant’s story, which is something different from “the trauma” to which that classification is expressly directed.

[34]In my judgment, at this point he rather trespassed beyond his remit as an expert medical witness into the area where it is was for the UT to make an assessment of all the evidence, including expert medical evidence about the nature of the injuries, in order to inform its judgment pursuant to the guidance in Karanakaran whether there was a possibility that the scars were the result of torture rather than SIBP, as part of its overall evaluation to answer the question whether the appellant would face a real risk of serious ill-treatment upon return to Sri Lanka. For example, if asked whether the scars on the appellant’s arm and back were consistent with SIBP on the basis of the appellant having been anaesthetised, I think it is clear that consistently with his evidence as a whole Dr Zapata-Bravo would have had to answer “Yes”. Assisted by the medical evidence of the immediate cause of the scars (application of a heated metal rod), it was for the UT to assess the overall likelihood of scarring by SIBP as against infliction by torture.

[35]Ms Harrison QC, for the HBF, submitted that under the Istanbul Protocol guidance it is the function of a medical expert 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. I do not agree with this. In the first place, I do not consider that this is what para. 187 of the Protocol says. It focuses, appropriately in my view, on the question of the likely immediate cause of a lesion or wound on the body of the complainant (in our case, application of a heated metal rod to the appellant’s skin), which is a proper subject for expert medical evidence. Secondly, and in any event, where a medical expert is providing evidence for use in the Tribunal, they should seek guidance primarily from the relevant Tribunal Rules and Practice Direction, and confine their evidence to topics properly within the scope of their expertise, rather than seeking to express views on wider questions regarding the assessment of the facts and evidence overall which are not within their expertise and are properly for assessment by the Tribunal. I return to the question of the proper role of expert medical witnesses below.

[36]I would add that, similarly, the Istanbul Protocol does not govern the approach which the Secretary of State 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. The proper approach for that is given by the guidance set out by this court in the Karanakaran judgment. Depending on the circumstances, in following that approach it may well be appropriate for the Secretary of State and the Tribunal to have regard to medical evidence formulated with reference to the categorisation in para. 187 of and other medical guidance in the Istanbul Protocol, but the Istanbul Protocol is not the governing or determinative legal code for such cases.

[37]The UT considered the effect of the expert medical evidence in the appellant’s case as regards the three issues UT Judge Dawson had directed be addressed, and concluded that there was no clinical way of differentiating between scars inflicted by torture and scars resulting from SIBP ([226]); that generally it was not possible after a period of time to tell whether there had been medical intervention or palliative care ([227]-[228]); and that ordinarily it was only possible to assess the age of scarring within the first 6-12 months ([229]). No party criticises these conclusions.

[38]The UT also concluded on the medical evidence that untreated fresh burn wounds are prone to infection and that if they became infected, this would affect the contours of the scars, making their edges less precise for example ([231]-[233]). I do not think that these conclusions can be criticised.

[39]At [233] the UT correctly made the point that these conclusions illustrate the limits of medical expertise in a case like this and underline the point that medical reports, although important as evidence, may not be able to resolve key questions regarding causation.

[40]The UT’s decision then has a section in which it evaluates general submissions by the parties on the topic of SIBP. It rejected a submission by the HBF that SIBP should be rejected a priori as a possible cause of scarring: [239]-[249]. In general terms, this is correct. If there is a reason to think that there is a real possibility that SIBP may be a cause of scarring, I cannot see why that should be discounted as a priori impossible. The UT also rejected another submission of the HBF, that medical experts should not routinely consider SIBP in their reports: [250]-[271] (culminating in the statement at [271], “… in order to remain faithful to the [Istanbul Protocol] methodology doctors cannot routinely exclude SIBP from their consideration of possible causes – certainly not if the reason for doing so arises out of a set of assertions which on their face are outside the limits of their medical expertise”). In my view, this intermediate submission by the HBF requires a more nuanced answer than the UT gave, more reflective of the particular circumstances of each specific case. The UT made observations in both these parts of its decision regarding the circumstances in which a medical expert should address the possibility of SIBP in his or her report with which I do not agree. These are part of the foundation for the general guidance the UT gave, which I discuss below. Contrary to the view of the UT, I do not consider that medical experts must necessarily and routinely consider the issue of SIBP in their reports.

[41]The UT accepted an aspect of a third strand in the submissions of the HBF, that medical experts should only be expected or required to consider SIBP as a possible cause when it is a real possibility: [272]-[295]. At [286]-[295] the UT said this:

“286. But the third strand of the HBF submission also contained a less tendentious proposition, which was that doctors should only be expected to consider SIBP as a possible cause when there was some basis for considering that that was a real possibility (meaning in this determination simply a possibility that is not a merely fanciful or theoretical one). 287. We consider that this proposition is a sensible one and offers the best way forward for devising a framework for dealing with the triple concerns of remaining faithful to [Istanbul Protocol] methodology, not eliminating SIBP as a possible cause, but at the same time not expecting doctors to give credence to it in every case (or to raise the spectre of them, to quote from HBF submissions, “having to prove a negative”). The question is, “what is it that should make SIBP a possible cause that doctors should engage with in a meaningful way in any particular case?”

In our judgment, there would need to be some presenting feature about the state of the evidence before the doctor that makes SIBP something that he or she is required to engage with. 288. It seems to us that presenting features could be of two kinds: clinical or non-clinical. 289. Dealing first with presenting evidence in a clinical context, it seems to us that the evidence provided by Dr Zapata-Bravo and Dr Allam (which was not contradicted by the other medical experts) affords a specific example of a case in which features were identified which meant that SIBP should have been seen to change from being a mere possibility to being a real possibility. On their evidence, if a person has been burnt with hot metal instruments that had been applied several times over a period of some 10 minutes and as a result has scarring with precise edges, it would be necessary for that person to have been unconscious throughout the procedure, and that was likely to have required anaesthetisation. Therefore, faced with a patient who claims to have fainted on the first application of a hot metal instrument and remained unconscious throughout several further applications, it is incumbent on an examining doctor to consider whether the torture claim is clinically plausible. (We deal more fully with the medical evidence relating to this aspect of the appellant’s case below). 290. Trying to reformulate this and similar examples given by the medical experts in more general terms, it would appear that such a feature arises when there is a tension or mismatch between what is revealed by a physical examination of the scarring and the patient’s account of how he came to have it. We see no reason why the possibility of a false allegation in the form of SIBP could not fall within this category in certain circumstances. 291. Turning to non-clinical presenting features, whilst we would not seek to define these exhaustively either, they would arise when there was a clear mismatch between the claimant’s account of when and where and how he was tortured and the established facts. One example would be where the claimant stated that he was tortured in his country of origin in a particular month and year but it was incontrovertible that at the relevant time he was in the UK. 292. We hasten to add that in both these examples of presenting features, it will always be necessary to consider whether matters are quite what they seem, e.g. (in relation to the first example) whether the failure to wake up from having fainted when there were further applications of a hot metal instrument to the subject’s body could have been caused by poor physical condition) or whether (in relation to the second example) the claimant could have been explicably confused about the period of time he said he was in his country of origin. At the same time, once they have taken such possible explanations into account, decision makers are entitled to make findings and draw reasonable inferences. 293. From what we have just elaborated it will now be clear why we do not consider that the negative answer given by the medical experts to the first question posed by the Tribunal at the case management stage (whether it was possible to differentiate between scars inflicted by torture and scars inflicted by SIBP) accords with the medical evidence furnished by two of them. We recognise that in seeking to answer this question the medical experts appear to have principally had in mind the incontrovertible point that clinical examination cannot identify the “hand behind the (instrument of) torture”. They also appear to have wanted to underscore the different view they have as to the distinguishability of scars inflicted by torture and scars inflicted by someone self-harming: the latter they find to be relatively easy to “detect”. At the same time, given that it turns out, from the medical evidence we had in this case, that clinical examination can shed light on whether it is plausible that scars were inflicted in the manner claimed, we think that a more nuanced answer should have been given to the first question. 294. For completeness we need to clarify what doctors should do or say about the SIBP possibility when there are no presenting features to suggest it. We only mean here to identify what we as judges consider as best practice in respect of preparation of medico-legal reports for use in asylum cases. It follows from our earlier conclusion - that SIBP cannot be excluded as a possible cause, either a priori or routinely - that (i) doctors should indicate in their assessment that SIBP as a possible cause has been considered (in the same way as Professor Katona [who gave psychiatric evidence] said it was best practice for doctors to consider feigning generally as a possible cause; and in the same way that Dr Zapata-Bravo considered whether the appellant’s scarring could have been caused by tattooing); but (ii) if there is an absence of any presenting feature giving rise to a concern about a “false allegation of torture” of this type, then all the doctor need do is state that whilst SIBP as a possible cause has been considered, there is no presenting feature making it more than a mere or remote possibility . 295. So far as decision-makers are concerned (primary or judicial), it should not be thought that our analysis requires them to make any definitive finding of whether scarring is the result of SIBP. If the evidence strongly points to such a finding we do think it is necessary to say that SIBP is a real possibility. In this regard we do not agree with Mr Duffy that it is enough simply to say that the burden of proof in asylum cases rests on the appellant and that if he has failed to demonstrate that his scarring was the result of torture, then he has not established his claim. That does not in itself make intelligible to the reader why the decision maker has engaged with SIBP as a real possibility. When there is at least one presenting feature of the case that makes SIBP a real possibility and, after consideration of the state of the evidence as a whole there is no other real possibility, that should be said. To state as much is entirely consistent with the guidance given to decision-makers in Karanakaran

[2000] EWCA Civ. 11

, [2000] Imm A.R. 271. But to go further would risk violating the cardinal principle of holistic assessment. In the context of a holistic assessment, where for example a claimant has given a strongly consistent and plausible account of his claim to have been tortured, but the medical evidence points against this, a decision maker might properly conclude that the claimant has nevertheless made out his claim to the lower standard.”

[42]As I explain below in my discussion of the general guidance given by the UT, I think there is something to be said for the UT’s approach in [286]-[293] and in [295]. However, I disagree with its approach in [294].

[43]The UT in its decision then dealt with various other matters which need not detain us here, before turning to a section setting out its assessment of the appellant’s appeal. At [320] the UT gave a self-direction in line with the guidance in Karanakaran, which the UT had already emphasised in its decision at [295], as follows:

“In the light of Mr Duffy [for the Secretary of State] maintaining the challenge to the appellant’s credibility, we need to make findings of fact in order to assess what risks there are if returned. We do so on the lower standard and assess therefore whether the account the appellant relies on is reasonably likely to have occurred or (putting it another way), whether there is a real possibility that the events claimed happened. Our findings are based on all the evidence, medical and non-medical, taken in the round and without compartmentalising one or the other. We apply, so far as it is relevant, the country guidance set out in GJ (post-civil war: returnees) Sri Lanka CG (Rev 1) [2013] UKUT 319 (IAC) (5 July 2013).”

[44]Mr Drabble did not criticise this direction.

[45]At [321]-[336] the UT took into account the evidence that the appellant was severely depressed and that an earlier assertion by the Secretary of State that the Sri Lankan authorities did not use burn scarring as a method of torture had been withdrawn; the UT then carefully evaluated the appellant’s factual account of what had happened in Sri Lanka and, as I have mentioned, found it contained many incredible or implausible elements. This part of its reasoning is not the subject of criticism by Mr Drabble.

[46]Then at [337]-[350] the UT considered the significance of the medical aspects of the evidence in the context of its overall assessment of the appellant’s case. The UT stated: “If the appellant’s scarring was caused by torture in detention then the possibility of the appellant’s account being true, nothwithstanding the identified shortcomings, becomes a real one” ([337]). It might be said that to put it in that way perhaps indicates that the UT set the bar too high for the appellant, in Karanakaran terms, by suggesting that it should look to see whether the cause of his injuries was likely to be torture, on the balance of probabilities. However, Mr Drabble did not suggest this and was right not to do so, as it is abundantly clear from other parts of the decision (in particular, [295], [320], [364] and [366]) that the UT properly approached the question in a Karanakaran compliant way by looking to see if there was a real possibility that the appellant had been tortured by the Sri Lankan authorities of sufficient plausibility and weight to offset the shortcomings in his evidence on his factual account of events in Sri Lanka.

[47]At [340] the UT again noted, as it had done at [233], the limits to what the medical evidence in the case was capable of showing, observing that none of the medical witnesses apart from Dr Zapata-Bravo made a specific finding in accordance with para. 187 of the Istanbul Protocol that the appellant’s account was either “typical of” or “highly consistent” with his account of being tortured. The UT preferred the evidence of Dr Odili and Dr Zapata-Bravo, as it was entitled to do, as to the technical circumstances in which the scarring may have come about ([341]).

[48]In an important passage at [342]-[348] the UT said this:

“342. All the medical experts agreed that that there was no inconsistency between the date the appellant said he was subject to burn scarring (August 2009) and the appearance of his scars as shown first to his GP and then photographed in April/May 2011. They were all agreed as well that, from the fact that the scarring on the appellant’s back had precise edges and patterning, he would have needed to be unconscious throughout as otherwise, even with restraint or his being held still, his muscles’ involuntary reflex would have caused the edges to be blurred. The time involved is also a relevant factor here. Dr Zapata-Bravo, without contradiction by the other experts, estimated that for the scars to have been inflicted on the appellant’s back there must have been several more applications of a heated metal instrument: he considered that was likely to have taken 10 minutes. 343. We have already observed that in our judgment the medical evidence we received raised a significant presenting difficulty for the appellant’s account. On his account, it must be recalled, he was first burnt on the upper right arm and the pain from that burn caused him to fall unconscious. If it was clinically likely that someone could be burnt once, then fall unconscious yet not wake up, even when there were more applications of a hot metal instrument, there was nothing to be concerned about. But if on the clinical evidence that scenario was unlikely, then the appellant’s account was clearly problematic. This issue was addressed by Dr Zapata-Bravo in his oral evidence, but given that his answer then was that he considered it unlikely that a person who had fainted would remain unconscious upon fresh infliction of pain, that was a matter that should have been apparent to him at the stage when he was examining the appellant and preparing his written report. We find it difficult to follow why in the end he said the appellant’s account of remaining unconscious was plausible. Both he and Dr Odili were entitled to treat as one relevant factor the appellant’s poor physical condition, but on the medical evidence as a whole, that was an unlikely explanation of the fact that he had not woken up. The evidence Dr Zapata-Bravo gave to the effect that shock-induced fainting was not sufficient for unconsciousness over the relevant period (approx. 10 minutes) was subsequently confirmed by Dr Allam, an anaesthetist. (We are also surprised that neither Professor Lingam nor Dr Zapata-Bravo explored more closely with the appellant the claimed severity of the beatings he received almost daily for 21 months, given that they found no other physical ill-effects except for knee problems). 344. At all events, we consider that the medical evidence as now before us discloses a presenting difficulty for the appellant. If his account is correct – and he was given ample opportunity to correct or qualify it – then he was able to remain unconscious despite several repeated inflictions of burn scarring which clinically was an unlikely hypothesis. 345. Dr Allam has described a sedation scale beyond which there is no response to painful stimulus. Her evidence about the way in which opoid analgesics or alcohol can achieve states of unconsciousness is not relevant to the claim as it is not the appellant’s case that these were used. As to fainting (which is the appellant’s case), she considers that a faint can be caused by any painful stimulus but that, following lying down, consciousness is regained very quickly as observed in her own patients, “usually within seconds”

. She refers also to other factors such as health/physical state that could affect the speed of recovery but does not suggest such factors could have caused him to remain unconscious even when the hot metal rods were re-applied. 346. It is not the appellant’s case that he was lying down and he demonstrated that the burns were applied [sc. the initial burns, which the appellant said were inflicted on his arm] when he was in a kneeling position throughout which he was restrained. It seems to us highly unlikely that had the appellant fainted he would have remained kneeling and is likely to have slumped. There would be no need for his captors to hold him in the kneeling position which would have required his cooperation and the rods could have been as effectively applied [sc. to his back] if he were lying on his front. 347. Afurther aspect of the clinical picture in the appellant’s case was that on his account he had not experienced any significant infection as a result of the episode of burn scarring (apart from suffering from a fever for a short period) notwithstanding that (i) he was in a poor physical state; (ii) the conditions in his cell were unhygienic and his wounds were not dressed; (iii) straight after he was burnt he had petrol poured over his body; (iv) when he went back to his cell he said his surface skin around and over the wounds peeled off; and (v) he continued to be beaten all over the body including on his back on a daily basis or at least every two or three days. There was consensus amongst the medical experts that if burn scarring wounds become infected, that can affect the eventual contours of the scars, making their edges or outlines less precise for example. We note that Dr Zapata-Bravo and Dr Odili considered that the odds of the appellant’s scarring becoming infected may have been reduced by the fact that (on his account) he had been allowed to bathe the day after and was given a clean shirt. At the same time, both clearly considered that even so he was “very lucky” to escape infection. Whilst the medical evidence regarding this aspect of his claim was not definitive, we think it is another indicator that the account he has given is not credible. 348. It follows from the above that we do not consider that Dr Zapata-Bravo’s conclusion that the appellant’s scarring was “highly consistent” with his account of having been tortured is justified when account is taken of the doctor’s own evidence indicating (i) it was clinically unlikely, given their precise edging, that his scarring could have been inflicted unless he was unconscious; and (ii) that it was clinically unlikely a person could remain unconscious throughout multiple applications of hot metal rods to his arms and back, unless he was anaesthetised; immobilisation or restraint short of anaesthetisation would have caused his muscle reflexes involuntarily to cause movement.”

[49]The UT then considered some further evidence which it is not necessary to go into, before setting out its conclusion at [364]-[367]: “364. Considering the evidence as a whole, including the background country evidence, the evidence of the appellant and his witnesses and the medical evidence, we are not satisfied, even on the lower standard, that he has made out his claim. There is evidence of wide-scale detention of Tamils in Sri Lanka in 2009-2011 and of torture involving burns in Sri Lanka. However in our judgment, these facts are not enough even on the lower standard to persuade us that the appellant was detained in the way that he described or at all or that he was burned and acquired the scars he has in the manner claimed. In addition to certain discrepancies, his story has too many implausible and inadequately explained aspects. In relation to the medical evidence, we have found that whilst it assisted in eliminating some possible causes, it left us with only two that were real possibilities: that the appellant was tortured as claimed; that his scarring was SIBP. Of these two real possibilities, we have found, on analysis, that the former claim does not withstand scrutiny. Certainly we cannot say in his case that the evidence inexorably points to SIBP, but given that we have concluded it is left as the only real possibility that we have not been able to discount, taking the evidence as a whole, we are satisfied that he has not shown his account is reasonably likely to be true.365. Taking all the evidence in the round we do not accept that the appellant had to flee Colombo for Vanni, that he provided services as a goldsmith to the LTTE or that he was detained on the cessation of hostilities. We find that after 2003 he lived and remained in Colombo and at no stage then or thereafter did he come to the adverse attention of the army or police before coming to the UK. He can safely return to Sri Lanka without fear as there is nothing in his past apart from his ethnicity that would cause the authorities to show any interest. The absence of any anti government activity pre and post flight will mean that any enquiry will not crystallise into concern about the appellant being a security risk.

366. To conclude, even though there is evidence of torture involving burns in Sri Lanka, and notwithstanding that we apply the lower standard of proof, that is not enough to persuade us that the appellant was burned and acquired the scars he has in the manner claimed.

367. In reaching this conclusion we have considered the appellant’s case in accordance with the current guidance as set out in GJand are satisfied that he would be of no interest to the authorities as he would not be perceived to be a risk to the state. In particular we are satisfied that the appellant is not on either a “stop” or “watch” list. The absence of problems before he left coupled with the nature of the limited activity he has undertaken in the United Kingdom (attending Nullivakail remembrance days in May 2012 and 2013 and Heroes’ Day in November 2011 and 2012) means that he does not have the profile of someone who will be regarded as a threat or of adverse interest. Any intelligence led enquiry would not indicate that the appellant is a Tamil activist nor does he have any intention of becoming such an activist on return. We do not consider that the appellant’s case falls within any of the current categories of risk identified by the Tribunal in GJ nor under any other categories discernible from available evidence”.

[50]At [368] the UT formally re-made the decision on the appellant’s appeal, dismissing his appeal on asylum and human rights grounds and holding that he is not entitled to a grant of humanitarian protection.

[51]It is unnecessary to go into the somewhat convoluted background to the grant of permission to appeal to this court.

The application to admit fresh evidence on the appeal

[52]The first matter I need to address is an application by the appellant to admit fresh evidence in this court and, on the basis of that fresh evidence, an application to amend the grounds of appeal. The proposed amended ground of appeal is as follows:

“The tribunal made a … mistake of fact amounting to an error of law by reaching its conclusions without consideration or awareness of the existence and relevance of a substantial body of evidence in the form of published literature showing, contrary to the tribunal’s findings, that (a) scarring of the kind on [the appellant’s] body could have been caused without the necessity for [the appellant] to have been unconscious when burnt; (b) wounds causing such scarring could have been caused in a matter of seconds; (c) unconsciousness for several minutes as a result of fainting, during which the person would not have been roused by the pain of being burnt was possible.”

[53]The fresh evidence which is sought to be introduced on the appeal to support this new ground of appeal is a report by Dr Juliet Cohen, Head of Doctors at Freedom from Torture, dated 2 December 2016. We looked at this de bene esse and heard submissions on it. Dr Cohen has produced a report in which she says(a) burn scars with well demarcated lesions can be produced where the victim is held immobile, without the need for general anaesthesia, contrary to the UT’s conclusion based on the evidence it heard;

(b) the burns on the appellant’s body could have been inflicted in considerably less than a minute, contrary to the theory which Dr Zapata-Bravo put forward to the UT and adopted by it of a period of infliction on a single occasion lasting about 10 minutes; and

(c) that if the burns were all inflicted in a very short space of time, of less than a minute, “it seems unlikely” that the appellant would have been roused each time he was burned.

[54]In relation to point (a), the UT directed considerable effort to trying to understand the effect of the medical evidence it heard on this very point and received explicit evidence on it, in particular from Dr Zapata-Bravo. The appellant and his advisers can have been in no doubt as to its significance for the UT at the hearing. The UT was plainly concerned in the course of the hearing to receive evidence which might assist it to understand the reactions of the body whilst unconscious (and gave directions to that effect: see [182]), and it would have been open to the appellant and his representatives at that time, even if not from the outset, to ask for permission to adduce further evidence before the UT of the kind that Dr Cohen now proposes to give.

[55]As regards point (b), it is relevant to note that it was the appellant’s own expert, Dr Zapata-Bravo, who proposed that the likely duration of the operation to inflict the burns on the appellant would have been about 10 minutes. Dr Zapata-Bravo said this in his oral evidence by way of amplification of his evidence at paras. 67-68 of his report that the infliction of the scarring would have been “a lengthy operation”. That evidence was given by him in an effort to refute the suggestion of SIBP. The appellant’s representatives and everyone else at the hearing before the UT appear to have been content to argue the case on the basis that this was indeed the likely timescale for consideration of the appellant’s version of events. The appellant’s attempt now to rely on a different account of timing is a significant change of position.

[56]In relation to point (c), Dr Cohen relies on guidance from the NHS Choices website which states that “in most cases, when a person faints they will regain consciousness within a minute or two”. The website does not address what would happen if a person who has fainted has a red hot iron rod applied to their back. As to whether this type of painful stimulus would rouse someone who had fainted, the highest Dr Cohen puts it is that “The infliction of a painful stimulus will not necessarily achieve that” and “further painful stimulus may not be able to overcome this” (para. 28).

[57]Dr Cohen summarises her evidence at para. 29 of her report:

“In summary, my opinion is that it is not necessary to anaesthetise a person to cause a series of burns as found in the case of [the appellant]. Simple immobilisation by a person or persons holding him would be sufficient, given that the time required to cause each burn is very brief. Literature assessing deliberately inflicted burns on children supports this – that the degree of immobilisation obtained by personal physical restraint is sufficient to cause clearly demarcated burns if the temperature of the object causing the burn is high. Whether or not he was conscious would not significantly affect the appearance of the burns, as the degree of demarcation of the edges is a reflection of the depth of the burn – a function in turn primarily of temperature and contact time. Movement is relatively less of an important factor the hotter the implement used to cause a burn. In this case I consider that it would not influence the depth of the burn significantly, as the contact time for a metal rod described as glowing red would be extremely brief, too brief for any reflex withdrawal to have significant impact. The account given is of loss of consciousness after the first burn, presumed due to fainting. Most references including for example the NHS Choices site assess duration of a faint as follows: in most cases, when a person faints they will regain consciousness within a minute or two. It is therefore possible for a series of burns to have been inflicted during the time [the appellant] was unconscious and for that pain not to have roused him, as his blood pressure was too low to restore cerebral circulation.”

[58]The application to admit fresh evidence comes before the court in an unusual way. There is an application notice seeking permission to adduce Dr Cohen’s report, but there is no witness statement or explanation why it would be just for this court to admit it. This is particularly striking because, as Mr Sheldon showed us, those acting for the appellant were aware of Dr Cohen before the hearing before the UT and had indeed approached her to be an expert witness on one aspect of the case, although in the end she was not asked to be a witness. Moreover, the evidence which she now seeks to give is evidence which seeks to corroborate the appellant’s account of how he came to be scarred, which has been consistent over several years. It was appreciated by the appellant and his advisers well in advance of the UT hearing that the hearing would include consideration of the issue of SIBP. Dr Cohen could have been identified and selected as an expert witness to support the appellant’s case in advance of the hearing of the UT. For all we know, since the appellant has put in no evidence to explain why Dr Cohen was not asked to provide her evidence previously, she was approached and the appellant and his representatives made the decision that evidence from other experts would overall be more supportive of his case on the appeal. 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, in particular the evidence given by Dr Zapata-Bravo and Dr Odili.

[59]I do not regard this as a proper basis on which such new evidence should be admitted on an appeal to this court.

[60]Further, the content of the evidence of Dr Zapata-Bravo as it emerged in his oral examination was already foreshadowed to a large degree in his written report. The appellant and his advisers had a full opportunity to explore with him before his report was filed what he would say if asked about his evidence of a “lengthy operation” being required (para. 68 of his report), which led to his explanation at the hearing that he had in mind about 10 minutes, and about his evidence that “total analgesia [was] required to eliminate all reaction to pain and thus generate these particular scars” (para. 70 of his report), which led to his oral evidence summarised at [148] of the UT’s decision (see above). None of his evidence should have come as a surprise to the appellant and his advisers, and it is possible that in fact it did not - there is no evidence from them to say that it did. In the event, the appellant and his representatives seem to have been happy to adopt as a plausible working hypothesis that the infliction of the scars in a single session would have been a lengthy operation of about 10 minutes, since that suited part of the appellant’s own case to deny the suggestion of SIBP. Different hypotheses could have been put to Dr Zapata-Bravo and the other witnesses at the hearing, but were not.

[61]Yet further, even if Dr Zapata-Bravo’s and Dr Odili’s oral evidence before the UT did come as a surprise to the appellant and his representatives, they had an opportunity to obtain evidence to answer or supplement it in the course of the proceedings before the UT, since the UT made it clear that it was willing to receive further relevant expert evidence which could help it to understand in medical terms the parameters within which the scarring could have occurred and agreed directions with counsel to achieve that objective: see [181]. And even on the questions which were agreed to be put to an anaesthetist (in particular, in relation to question 6), the appellant could have sought to obtain and then applied to put in Dr Cohen’s report to answer them.

[62]Thus, not only did the appellant and his representatives have an opportunity to get his medical expert evidence fully in order in advance of the hearing before the UT, they also had an opportunity to seek to adduce further relevant expert evidence in the course of the proceedings before the UT.

[63]In these circumstances, I would dismiss the application which is now made to adduce Dr Cohen’s report as fresh evidence in this court. In my view, the admission of this evidence on this appeal would be contrary to the overriding objective in CPR Part 1. It would not be just to admit new evidence which could reasonably have been obtained in advance of the hearing below and could also reasonably have been obtained in the course of the hearing below; the purpose of which is to plug holes which emerged at the hearing as a result of the evidence given by the appellant’s own expert witnesses; and which also involves an attempt to change in a significant respect the appellant’s own case as advanced at the hearing in the UT. The introduction of this new evidence would be unfair to the Secretary of State and would mean that the appellant’s appeal against the Secretary of State’s decision was not dealt with expeditiously and at proportionate cost; it would also mean that a disproportionate share of the court’s and tribunal’s resources would have to be devoted to the appellant’s case, since if this material is admitted and it leads to the appeal being allowed, it is agreed that the case would have to be remitted to the UT for a fresh determination, as the Secretary of State would need to have an opportunity to respond to it.

[64]The criteria set out in Ladd v Marshall

[1954] 1 WLR 1489

at 1491, which are intended to reflect the balance of justice in relation to applications to admit fresh evidence, remain of relevance when applying the CPR “and indeed of powerful persuasive authority”: Sharab v Al-Saud

[2009] EWCA Civ 353

at [52]. The appellant is unable to satisfy the first of the familiar Ladd v Marshall criteria, since as explained above he cannot show that evidence to the effect of Dr Cohen’s report could not have been obtained with reasonable diligence for use at the trial.

[65]In my view, the appellant is also unable to satisfy the second criterion, since I do not consider that the evidence would, if given, probably have an important influence on the outcome of the case. The UT found that all the relevant experts which it heard (i.e., as I read the decision, leaving aside Dr Lingam and other experts such as Professor Katona, the psychiatrist expert, whose evidence did not address the point) agreed that “from the fact that the scarring on the appellant’s back had precise edges and patterning, he would have needed to be unconscious throughout as otherwise, even with restraint or his being held still, his muscles’ involuntary reflex would have caused the edges to be blurred” ([342]). We have not been shown anything by way of a transcript to establish that this is erroneous or an assessment of the evidence which the UT was not entitled to make. Dr Cohen’s evidence, therefore, is against the weight of the evidence given by the other relevant experts on that point. Furthermore, her evidence about this only goes to suggest that clearly defined scarring can occur without the subject being unconscious. But the appellant’s own account was that the scarring on his back occurred while he was unconscious, so Dr Cohen’s evidence on this question does not support the credibility of the appellant’s account, which was the key point in issue. And on the question whether application of a red hot iron bar would have awoken the appellant from a faint, her evidence is cautious and qualified, being only to the effect that it may not have done, without giving any detailed assessment of that possibility. It is, moreover, predicated on a hypothesis of very speedy application of the bar across the appellant’s body which is contrary to the working hypothesis advanced by the appellant and his experts at the hearing before the UT and is itself highly speculative.

[66]Further, if the reception of fresh evidence would lead to a re-trial, as it would here, this should only be allowed “if imperative in the interests of justice”: see Transview Properties Ltd v City Site Properties Ltd

[2009] EWCA Civ 1255

, cited at para. 52.11.2 in the notes on admission of fresh evidence in the White Book 2016. In my view, the appellant is very far from being able to satisfy this stringent test in the circumstances of this case.

[67]Asylum cases do not fall into a special class, in which the usual test for admission of fresh evidence on an appeal is to be relaxed.

[68]In addition to Dr Cohen’s report, the appellant also applied to admit as fresh evidence a letter from Dr Zapata-Bravo dated 4 December 2016 in which he seeks to explain his evidence about the 10 minutes for the procedure and also confirmed that he had read Dr Cohen’s report and does not disagree with anything she says. In my view, the application to admit this new evidence should also be dismissed, for similar reasons. Most obviously, the appellant and his representatives had an opportunity to clarify Dr Zapata-Bravo’s evidence about the 10 minutes when he was giving his evidence. They chose not to do so, as I infer, for their own tactical reasons. So the first Ladd v Marshall criterion is not satisfied. Further, what Dr Zapata-Bravo says about his evidence in the letter is consistent with the evidence he did give and he does not attempt to retract any part of that evidence. I do not consider that this letter would satisfy the second Ladd v Marshall criterion, either. In so far as Dr Zapata-Bravo refers to the report of Dr Cohen, her report should not to be admitted and so that part of his letter does not carry the appellant’s case further forward; and the admission of that part is itself open to the same objections as are set out above in relation to her report.

The merits of the appeal against the UT’s decision

[69]I turn then to consider whether the appellant’s appeal should be allowed. This court did not give permission to the appellant to amend his grounds of appeal, predicated as the proposed amended grounds were on the reception of the new evidence of Dr Cohen. I therefore focus on the appellant’s extant grounds of appeal. This appeal is by way of review, not a re-hearing: CPR Part 52.11(1). This court can only intervene if it is persuaded that the decision of the UT was “wrong” or “unjust because of a serious procedural or other irregularity” in the UT’s proceedings: CPR Part 52.11(3).

[70]In large part, the grounds of appeal were effectively abandoned by Mr Drabble, who had not been involved in drafting them. The first ground (paras. 6-8) was that the appellant had been denied a fair hearing, by reason of the fact that the issue of SIBP in relation to his scarring was addressed in the UT hearing and decision. But it is clear that the appellant had full and fair notice in advance of the UT hearing that it would be dealt with, and that indeed is why he addressed the issue in his own evidence and in the expert evidence filed on his behalf for that hearing. When pressed, Mr Drabble accepted, as I think he was bound to do, that the appellant had not been denied a fair hearing on the issue.

[71]The third and following grounds (paras. 11-19) all relate to criticisms of the UT’s reasoning in rejecting significant aspects of the appellant’s factual evidence about the circumstances in which he came to the attention of the Sri Lankan authorities, why he would continue to be of interest to them, how he came to be imprisoned and how he then escaped and was able to flee the country. As mentioned above, Mr Drabble did not pursue any of these grounds of appeal. He implicitly accepted, rightly in my view, that the UT was entitled to make the assessment it did of these aspects of the appellant’s evidence and case.

[72]The second ground of appeal (paras. 9-10) relates to the medical evidence heard by the UT. It has two limbs. The first (para. 9) sets out criticisms of the UT’s assessment of the expert medical evidence which it heard. In my view, these amount to no more than disagreement with findings of fact which were properly open to the UT on the evidence which it heard. Accordingly, I consider that this limb of the second ground should be dismissed. Indeed, I think that the way in which this court was taken through the fine detail of the medical evidence and treated to contestable submissions on each side about its effect rather underlined the point that at the heart of this appeal is a simple disagreement with the findings of fact and possibilities as made by the UT. I elaborate on this when dealing with aspects of this case which were emphasised by Mr Drabble in his oral submissions, below.

[73]The second limb (para. 10) is a complaint that the UT fell into material error in first assessing the credibility of the appellant’s claims and factual evidence about the circumstances in which he came to the attention of the Sri Lankan authorities etc and then in considering the medical evidence. Mr Drabble did not dwell on this complaint, and rightly so. In my view it is misconceived, because the UT was at pains to explain that it adopted the appropriate approach as set out in Karanakaran, taking an overall view of the evidence as a whole, and not compartmentalising different aspects: see in particular [320] and [337].

[74]As to the position on assessment of the medical evidence, there is no doubt that infliction of scarring of the kind found on the appellant’s body by SIBP will be highly unusual. For it to be done without anaesthetic would be very unlikely because of the pain involved. For it to be done with anaesthetic in Sri Lanka would require a co-operative doctor willing to proceed in a clandestine matter, and the Secretary of State had no country information to put forward to suggest that this would be common, though she referred to a couple of tribunal decisions in which other tribunals had thought that SIBP was a real possibility.

[75]There is no indication that the UT thought anything other than that infliction of scarring of this kind would be highly unusual, as was obvious. In assessing the credibility of the appellant’s account of how his scarring came to be inflicted, however, the UT was justified, in my view, in highlighting at [342]-[344] a central implausibility in that account, when assessed against the medical evidence. This is that it was clinically unlikely that the appellant could have fallen unconscious after the first burn and then remained unconscious when he was repeatedly burned across his back. In my view, the assessment of the probabilities made by the UT there and in the following paragraphs was well open to it on the basis of the evidence it had heard. The UT examined the matter with considerable care.

[76]I consider that in the light of its assessment the UT was entitled to make the overall assessment which it did in [364]-[367]. It conscientiously balanced the probabilities of infliction of the scarring by SIBP and by torture at [364], and was entitled to assess that the possibility of infliction by torture was open to being discounted in light of the medical evidence, leaving SIBP remaining “as the only real possibility that we have not been able to discount”. The UT’s assessment was legitimately open to it and cannot be criticised as perverse or irrational.

[77]Mr Drabble criticised the UT for failing to present an account of how the scars on the appellant’s arm came to be inflicted so as to have a different appearance from the scars on his back. The branding on his arm was not so “perfect” as that on his back (to use Dr Zapata-Bravo’s expression: para. 60 of his report).

[78]In my view, this criticism is misplaced. The UT’s task was to assess the overall credibility of the appellant’s account, both in relation to the general factual circumstances of what happened in Sri Lanka and in relation to how he said he came to be scarred, in order to make its overall assessment according to the approach in Karanakaran. It was enough that on the medical evidence the UT found the appellant’s account of how he came to be scarred by torture implausible. It was not incumbent on the UT to come up with a definitive alternative account of how in fact the scarring occurred.

[79]In AJ (Cameroon) v Secretary of State for the Home Department

[2007] EWCA Civ 373

, another scarring case in relation to assessment of risk in respect of refoulement of an asylum-seeker, to which the UT was referred, Laws LJ said this at para. [11], in a judgment with which the other members of the court agreed:

“I do not consider, for my part, that the AIT [Asylum and Immigration Tribunal] was bound to make particular findings as to how, in their view, the appellant came by his injuries. The burden of proof was on him. The AIT rejected the case he put forward. They were not obliged to look for some different or modified case that might be in his favour. Such an exercise anyway would necessarily have been speculative, and for that reason inapt and unhelpful. … It cannot be said that in the light of Dr Forrest's evidence [the medical expert witness relied on by the appellant] the only reasonable conclusion on the facts was that the appellant's case was right. …”

[80]In the present case, if the appellant’s account was found to be implausible by reason of the medical evidence, then there was no reason to think that the scarring must necessarily have been inflicted on the same occasion or in the same way. The difference in the profile of the scars on the appellant’s arm and on his back would then be less significant. If it was likely that he needed to have been anaesthetised for the scars on his back, that would indicate that he had access to a co-operative doctor, and if so he could have access to such a doctor on more than one occasion. Greater or lesser care could have been used by the doctor in inflicting scarring either on the same occasion or on different occasions.

[81]The significant point, in my view, which the UT correctly understood, was that if the appellant’s account of being tortured was assessed to be implausible, then the UT could properly give weight to the other implausible and incredible elements in his account of what had happened to him in Sri Lanka and not treat them as outweighed when applying the Karanakaran approach to the overall assessment of whether he would face a real risk of serious ill-treatment if returned to Sri Lanka.

[82]Mr Drabble submits that the UT was wrong in [342] to say that there was a consensus between the experts that the appellant would have needed to be unconscious throughout the procedure, to produce such perfect scars on his back. I have already explained that, on a fair reading of this passage, the UT was referring to the experts who gave evidence on the issue of the relationship between the scar profiles on the appellant’s back and the need for unconsciousness. The UT here could not plausibly be taken to be referring to all the medical experts, including for example Professor Katona (a psychiatrist expert) and Dr Lingam, who did not address that point. I have also explained that the appellant has failed to establish that the UT misunderstood the relevant evidence on the point. Although we were taken to passages in the written reports of the relevant experts (Dr Zapata-Bravo, Dr Odili and Dr Arnold) which were not definitive on the point, oral evidence was received from each of them and it is likely that the UT checked what they had to say about it. To repeat, we were not shown a transcript from which we could conclude that the UT’s statement in [342] was not justified. The UT clearly thought that the other experts had a fair opportunity to say if they disagreed with Dr Zapata-Bravo’s evidence to the effect as set out in [342], and they did not: see [289]. Again, we have been shown nothing to indicate that the UT was wrong about this.

[83]In this regard, it is notable that the first set of questions prepared for Dr Allam, as agreed by the appellant’s representatives, were predicated on an assumption that the states of unconsciousness about which she was asked had to be to a degree that burns could be inflicted “without there being a discernible flinching of the muscles”. It appears to have been common ground by the stage these questions were prepared at the end of the hearing that flinching of the muscles would be an issue affecting the clarity and definition of the scarring, unless there was unconsciousness to prevent that occurring. Dr Allam did not question that assumption in her report.

[84]Mr Drabble also argued that the UT had not given proper weight to suggestions in parts of the expert evidence that there was a possibility that, if the appellant had been in very poor physical condition, the burns on his back might not have roused him from a faint. I do not agree. The UT plainly took this evidence into account: see their reference to Dr Zapata-Bravo’s evidence on the point at [147] and their comment on Dr Allam’s report at [345]. The UT was entitled to make the assessment it did at [337]-[350] having taken this aspect of the evidence into account.

[85]Specifically in relation to Dr Allam, the UT was entitled to expect that Dr Allam would have been properly briefed for the purposes of her report by those acting for the appellant, as also appeared to be confirmed by her own confirmation that she had read the relevant Practice Direction (see para. 10.1 of the Practice Direction, discussed below). The absence of evidence from Dr Allam to comment that health or physical state factors could have caused the appellant to remain unconscious even when his back was burned by hot metal rods, in circumstances in which it would have been easy and appropriate for the appellant and his representatives to ask her to comment specifically on that issue in the report which they instructed her to prepare, was in my view clearly a matter which the UT was entitled to take into account as it did at [345].

[86]For the reasons I have given, I would dismiss the appeal.

The Upper Tribunal’s guidance on medical evidence in relation to SIBP

[87]The proper approach to the instruction of experts, their role and what their reports should include is set out in para. 10 of the Practice Direction for the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal issued by the Senior President of Tribunals originally on 10 February 2010, and again in revised form in November 2014. Paragraph 10 provided in relevant part in the 2010 version of the Practice Direction, and still so provides in the 2014 version, as follows: “10.1 A party who instructs an expert must provide clear and precise instructions to the expert, together with all relevant information concerning the nature of the appellant’s case, including the appellant’s immigration history, the reasons why the appellant’s claim or application has been refused by the respondent and copies of any relevant previous reports prepared in respect of the appellant. 10.2 It is the duty of an expert to help the Tribunal on matters within the expert’s own expertise. This duty is paramount and overrides any obligation to the person from whom the expert has received instructions or by whom the expert is paid. 10.3 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation. 10.4 An expert should assist the Tribunal by providing objective, unbiased opinion on matters within his or her expertise, and should not assume the role of an advocate. 10.5 An expert should consider all material facts, including those which might detract from his or her opinion. 10.6 An expert should make it clear:-(a) when a question or issue falls outside his or her experience; and

(b) when the expert is not able to reach a definite opinion, for example because of insufficient information. … 10.11 The form of the Statement of Truth is as follows: ‘I confirm that insofar as the facts stated in my report are within my own knowledge I have made clear which they are and I believe them to be true, and that the opinions I have expressed represent my true and complete professional opinion.’ … ” (a) when a question or issue falls outside his or her experience; and (b) when the expert is not able to reach a definite opinion, for example because of insufficient information. ‘I confirm that insofar as the facts stated in my report are within my own knowledge I have made clear which they are and I believe them to be true, and that the opinions I have expressed represent my true and complete professional opinion.’

[88]As mentioned above, Dr Allam said in her report that she had read the Practice Direction. Professor Lingam and Dr Odili seem not to have had their attention drawn to the Practice Direction, but referred generally to being aware of their duty “to the court”. Dr Zapata-Bravo likewise seems not to have been shown the Practice Direction, but referred to his duty “to the court” and to CPR Part 35. Dr Arnold did not refer to the Practice Direction or to any duty to the court, but signed a simple statement saying that he believed the contents of his statement were true.

[89]I can understand the desire of the UT to try to issue a definitive guidance judgment on relevant medical evidence as to SIBP in scarring cases. At an early stage both parties agreed with the UT that this would be a good thing to do. If such a thing could be achieved, it might save time, effort and costs for parties and the Tribunal and provide clear guidance for FTT and UT chambers dealing with scarring in the context of a suggestion of SIBP. The idea seems to have been to try to issue a guidance judgment somewhat akin to what is done with country guidance cases issued by the UT, which fulfil a very valuable function.

[90]However, the idea rather went off the rails when the Secretary of State did not engage in joint instruction of expert witnesses and declined to instruct her own experts. Moreover, on reflection and with the benefit of seeing how things transpired in this case, I respectfully question whether it was ever going to work very well. The UT itself emphasised the limited assistance the expert evidence provided on the three questions it originally identified. In my view, medical evidence will usually have to be so case-specific that it is unlikely that generalised formulations by the UT or a court will ultimately provide much of a substitute for instruction of experts who examine the individual in question and provide what assistance they properly can within the area of their expertise, following the approach set out in the Practice Direction.

[91]I think that a responsible medical expert witness who is instructed in accordance with the Practice Direction can be relied upon to present their expert evidence in a neutral and balanced fashion. The Practice Direction aptly informs an expert witness what they are entitled to expect by way of instruction and what their responsibilities are when preparing their evidence. In ordinary circumstances additional guidance from a tribunal or court is unlikely to be of much value, and could confuse.

[92]In an immigration and asylum context, if an expert medical witness is properly instructed regarding the circumstances of the individual case and thus has their attention drawn to the salient points of dispute between the parties in relation to which their assistance is being sought and also has their attention drawn to the guidance in the Practice Direction, it should be reasonably clear what evidence they can and ought to give. If the applicant for asylum has scarring and maintains that it is the result of being tortured, it should appear from the Secretary of State’s decision whether she accepts their account or not. If she does not accept it, she should explain why she rejects it or is unpersuaded by it, including by saying (if this is her reason) that she considers that the injuries could have been self-inflicted or the result of SIBP. The question of self-infliction or SIBP will then appear as an issue between the applicant and the Secretary of State, and the expert witness will know that that is something about which they should give any relevant evidence which they properly can, within their expertise.

[93]One problem in the present case is that the Secretary of State in her decision letter did not accept the appellant’s account that his scarring was the result of torture but did not explain her reasons for taking that view, as in my judgment she should have done. She simply said, “you have provided no documentary evidence to relate that these scars were as a result of torture from the Sri Lankan police.” Self-infliction of wounds, or wounding by SIBP, is generally so unlikely that the Secretary of State should raise it as an issue, if it is to be part of her reasoning to reject an account of torture.

[94]Since the issue of SIBP was not raised at the outset in the Secretary of State’s decision letter, it first came into the proceedings by an odd side-wind, by the reference to SIBP in Professor Lingam’s report. I do not criticise Professor Lingam for raising it in order to dismiss it, but I think that this and the reference of the expert witnesses to the Istanbul Protocol has led the UT to issue guidance which suggests that expert medical witnesses in scarring cases should be raising self-infliction and SIBP as a routine matter in their reports. Contrary to what some of the expert witnesses in this case seem to have thought, it is the Practice Direction, not the Istanbul Protocol, which provides the relevant authoritative guidance as to their duty, helpful though parts of the Istanbul Protocol might be as a reference resource. Contrary to the UT’s guidance, I do not consider that it is incumbent on medical experts in scarring cases to refer to the possibility of SIBP, where the Secretary of State has not raised it as an issue, unless there is some feature of the case which engages the duty of the medical expert to bring it to the attention of the Tribunal, pursuant to the guidance in the Practice Direction. Subject to that duty, an expert witness does not have to raise and comment on issues which have not been raised by the parties to the proceedings.

[95]If that background is borne firmly in mind, there is some force in what the UT said in the second part of [287], as amplified in [288]-[291], quoted above. If on examining an applicant for asylum it appears to the medical expert that features of the scarring said to be corroborative of the applicant’s account of torture indicate that there are medical issues which cast doubt on that account, it will be the duty of the expert witness to draw these issues to the attention of the Tribunal. For example, that might be because scarring of the kind in question is not compatible with the account given by the applicant of how it was inflicted (see [289]) or because features of the scarring indicate that it was inflicted at a time different from that stated by the applicant (see [291]). Or if the injury relied upon as corroborative of torture is also familiar to the expert as a kind which is a common sporting injury, that might be the sort of thing which should be mentioned. I do not think is it helpful to try to elaborate further in abstract terms.

[96]In my judgment, the guidelines issued by the UT and set out in the Annex below should be treated as of no effect. The best guidance available for expert witnesses is set out in para. 10 of the Practice Direction, and medical witnesses should have their attention explicitly drawn to this when they are instructed to prepare expert evidence.

Patten LJ:

[97]I agree.

Elias LJ:

[98]I gratefully adopt the analysis of the facts set out in the judgment of Sales LJ. I agree with his conclusion that it is not necessary to lay down any guidelines beyond the guidance given in para.10 of the Practice Direction. This should be 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. The Practice Direction also emphasises the overriding duty to the court. If that is in any way compromised, it undermines both the integrity of the process and the standing of the expert. I also agree with the cogent and to my mind convincing reasons why it would not now be appropriate to admit the fresh evidence. However, I respectfully disagree with Sales LJ’s conclusion on the substantive disposal of the case. Notwithstanding that the UT decision was very extensive and recounted the evidence conscientiously and in considerable detail, I have concluded that there are certain critical parts of the Tribunal’s reasoning which are left obscure or do not have a sufficiently sound evidential basis, and that in the very unusual circumstances of this case, the decision should be quashed.

[99]In my judgment the critical feature of this case is the finding of the UT, which is not in dispute, that the nature and placing of the scars is such that the only legitimate inference is that they were either caused by the appellant being subjected to torture or they were self-inflicted by proxy (SIBP). There is no other realistic possibility. Plainly SIBP cannot be discounted as a possible explanation, and to the extent that it was initially suggested that it was in some way improper for the UT to address that issue, that submission is in my view wholly misconceived. It would be quite wrong to rule a possible explanation out of consideration, however invidious it may be to have to consider it. Having said that, it must be a very rare case indeed where a person would subject himself to painful and severe scarring of the kind suffered by this appellant in order, presumably, to manufacture or possibly strengthen a claim for asylum. It is also pertinent to consider why someone seeking to manufacture a claim of torture would have thought it necessary to have subjected himself to so many burns when one or two strategically placed scars would equally well have supported a claim of torture.

[100]Strictly it is correct to say that the UT did not make a finding that the scars were SIBP. It was not necessary for the UT to find the cause of the scarring, only to negate torture as a realistic cause. But given the lower standard of proof in asylum cases enunciated 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, compels the conclusion that the scars were SIBP. The UT effectively recognised that at para. 364 when it said that of the two possible explanations, torture did not withstand scrutiny, and this necessarily left SIBP as the only real possibility. I appreciate that the medical evidence relating to the cause of the scarring was not the only basis on which the UT reached that conclusion. Sales LJ has set out the other evidence which the UT did not believe to be credible. For example, the appellant’s claim that he had been subjected to regular beatings in custody, his account of how and why he left Colombo and travelled to Vanni, and his explanation of how he had escaped from detention and later from Sri Lanka in the way he did were all found to be implausible. Mr. Sheldon strongly argued that this was very important evidence supporting the UT’s conclusions. He submitted that when the lack of credibility was taken into account and the evidence was looked at in the round, which I accept it was, the UT’s conclusion was unassailable.

[101]I accept that typically the evidence going to credibility of an applicant’s account of events will be a major factor in the assessment of an asylum claim. If the account is inherently unlikely, it will usually lead to a rejection of the claim even if there is some evidence of scarring or other injuries which, taken on its own, might lend some support to an allegation of torture. If the scarring is consistent with other causes, such as accidental injury or perhaps medical operations, the assessment of the applicant’s account will be extremely important in the holistic evaluation of the claim. However, in my view this case is exceptional precisely because the only alternative to torture is SIBP. It seems to me that in this context the medical evidence bearing on the question whether the appellant may have been subjected to torture was absolutely critical and potentially dwarfed the significance of the other evidence. If the UT had accepted that there was cogent evidence of torture consistent with the appellant’s account of the manner in which the burn scars were inflicted, then given that the alternative explanation was that the injuries were SIBP, the other evidence suggesting that the appellant’s account was lacking credibility would in my view have had to be very compelling indeed to justify the UT in effect embracing SIBP as the only realistic explanation for the scarring. The UT did indeed observe (para.337) that “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.” I would respectfully suggest that in those circumstances, bearing in mind the lower standard of proof, the Tribunal would have been obliged to accept to the lower standard that the account was substantially true. If the medical evidence is consistent with an applicant’s account of how he has been tortured, I am doubtful whether even strong reservations about the veracity of an appellant’s account of events could displace a finding of torture to the lower standard where the only alternative is SIBP. Plainly that would be possible where the account could be shown to be not merely inherently unlikely but actually false, such as where there is incontrovertible evidence that the applicant was not in the country when the alleged torture was said to have occurred. In my view very considerable weight should be given to the fact that injuries which are SIBP are likely to be extremely rare. 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. Moreover, the possibility that the injuries may have been sustained in this way is even less likely in circumstances where the applicant would have needed to be anaesthetised. This would in all probability have required the clandestine co-operation of a qualified doctor who would have had to be willing to act in breach of the most fundamental medical and ethical standards, and who had access to the relevant medical equipment. Evidence relating to the cause of scarring.

[102]In my judgment, therefore, the central issue in this appeal is whether the UT’s conclusion that the only realistic explanation for the injuries is that they were SIBP is sustainable, having regard in particular to the appellant’s account of how the scarring was inflicted and the relevant expert medical evidence. I respectfully disagree with the observations of Sales LJ at paras. 78-79 when he states that it was enough for the UT to find that the appellant had not discharged the burden, even to the lower standard, of establishing that he had been subjected to torture, and that it was not obliged to determine what the cause of the injuries was. That is of course generally true. But in my judgment where the UT accepts that in excluding torture it is necessarily embracing SIBP, not only is it obliged to have regard to that fact, but it should give it considerable weight in its overall assessment.

[103]As I read the analysis of the UT on this issue, it can be fairly summarised in the following way. In para. 342 it found that all the experts agreed that the appellant must have been unconscious at the time the burns on his back were inflicted. This is because of the precision of the scars; had he been conscious, even if restrained, one would expect the scars to have been blurred at the edges because of involuntary muscle movements. In fact, that summary of the evidence was not correct, as Mr Drabble QC pointed out. It is not true that all the experts considered that he must have been unconscious. His point was not, as I understood it, and as Lord Justice Sales seemed to think, that the reference to all the experts was false because some experts did not opine on the matter. It was that even amongst the experts who did, some of them – in particular Dr Odili and Dr Arnold - envisaged that a victim might have precise scars if either immobilised or unconscious, the inference being that a victim could be sufficiently immobilised when conscious by physical means. Indeed, Dr Arnold did not think that it was possible to tell simply by looking at the scars whether someone was conscious or unconscious. Sales LJ suggests at para. 82 that it may fairly be assumed that there was other oral evidence, not specifically referred to in the decision, which justified the Tribunal’s conclusion. I respectfully disagree. This was potentially important evidence which I would expect the UT to record. In my view it should not be inferred that there must have been other unrecorded evidence apparently at odds with, and certainly constituting important qualifications to, these highly material observations made in the written reports.

[104]It may be said that this point is of no real materiality because it was not the appellant’s case that he was being held when the scars on his back were inflicted. But the possibility that he might suffer burns with precise edges when conscious, if sufficiently restrained, is potentially relevant to the scarring on his arms, because it supports the his account that he was awake but restrained at that point.

[105]In fact, the appellant’s account of fainting and remaining unconscious whilst the scars were inflicted on his back was consistent with the precise perimeters of those scars. But the tribunal rejected his account on the grounds that the kind of temporary unconsciousness resulting from fainting would not have sufficed to keep him unconscious throughout the branding process. He would have been resuscitated when fresh burns were inflicted.

[106]In reaching this conclusion, the UT relied upon the evidence of Dr Zapata-Bravo, a Consultant Psychiatrist. He said in the course of giving oral evidence that in the normal course of events, someone who was tortured in the manner alleged by the appellant would have been likely to recover consciousness when fresh pain was inflicted by using the iron bar to imprint further burn marks. He did not think it inevitable, however. Someone very weak and under-nourished could remain unconscious throughout. Moreover, his opinion was that the scarring would have taken about ten minutes, but that was speculation which did not depend upon his medical expertise. This evidence did not sit happily with his written evidence that there were probably five burns resulting in the seven scars, and that each would have taken a matter of seconds to inflict. He was not cross examined on his time estimate but it was adopted by the UT. It was potentially important since the longer the period, the less likely it would be that he would have remained unconscious throughout.

[107]The UT found that if the appellant had been tortured, these scars on the back would not have had precise boundaries but would have been blurred. So the UT concluded that the appellant must have been in a deep state of unconsciousness in order not to wake. The evidence strongly suggested that this could not be achieved by drugs or alcohol and that in all likelihood he must have been anaesthetised. However, his torturers would not have anaesthetised him from the pain; the very purpose of torture is to inflict pain, not to provide relief from it. So the necessary inference was that the burns were SIBP when he was anaesthetised. In reaching this conclusion the UT rejected Dr Zapata-Bravo’s evidence that the appellant could have remained unconscious after fainting in exceptional circumstances.

[108]There are in my Judgment two particular difficulties with this analysis. The first is that there has to be some explanation of the scars on the arms. Paragraph 342 simply deals with the scars on the back and by inference suggests that the other scars were different. However, if the appellant was anaesthetised when the scars were imposed on his back, then in all likelihood he must also have been anaesthetised when the burns were inflicted on the arms. Sales LJ suggests at para.80 above that the differences in appearance between the scars on the back and the arms could be explained if, for example, they were inflicted on separate occasions. I do not accept that the differences can be dealt with in that way. In my view it is bordering on the fanciful to believe that if these burns were SIBP, they would have been inflicted on more than one occasion. The scars on the back were so placed that they were only compatible with SIBP or torture; on the assumption that they were self inflicted, why would the appellant willingly undergo further burning on his arms on a different occasion? In my judgment the UT had to find an explanation for the different appearance of these scars and it could not characterise his account of being tortured as implausible without having done so.

[109]If all the wounds, including on the arms, had been the result of SIBP, one might expect the scars on the shoulder to have a similar pattern to those on the back. There was indeed evidence from Dr. Odili who examined the scars, that they did present themselves as being broadly identical with no blurring or smudging. She did say, however, that the scars on the arms were wider and darker and indicated that these were inflicted first when the rod was hottest. That was consistent with the appellant’s account that he had been burnt on the arms first. She thought that the appellant must either have been immobilised or unconscious when the scars were inflicted.

[110]Dr Zapata-Bravo also identified distinctions between the scars on the back compared with those on the arm. He said that the shape was different in that the branding was not perfect and the state of the rod was not replicated as it was on the back. They did not present the same “faultless hyperpigmentation” marks, was how he put it. His view was that these burns may have been inflicted when the appellant was conscious. He considered that the overall pattern of scarring was “highly consistent” with the account given by the appellant, namely that he was first burnt on the arms and then lost consciousness. Sales LJ submits that this was not a legitimate observation for an expert to make and that it was for the Tribunal to make that determination. If the doctor was intending to express a view about the credibility of the appellant’s account of events overall, I would agree. But I do not think he was intending to do that. He was commenting on the account of how the torture was inflicted. The scars were diagnostic of burning by a hot rod, but the different appearance of the scars on the arms and the back was, in Dr Zapata-Bravo’s view, highly consistent with the appellant’s account of the circumstances in which the scars had been inflicted - first on the arms and then on his back after he had fainted and become unconscious. I accept that the UT could properly consider whether they were persuaded by the doctor’s analysis, as it did, but in my judgment in making that observation Dr Zapata-Bravo was not stepping beyond his remit. (I would add that in my view it is not to the point that the injuries were also consistent with SIBP; they almost inevitably will be. It is possible that someone who is anaesthetised can undergo any indignity.)

[111]The UT was not impressed with Dr Zapata-Bravo’s conclusion that the appellant’s account was “highly consistent” with the medical evidence. At para.348 it held that this was not a justified conclusion given that he had accepted that the scars were precise; that it was unlikely that such scarring could have been inflicted unless the appellant had been unconscious; and that it was unlikely that he would remain unconscious unless he was anaesthetised.

[112]Mr Drabble submits that this reasoning does less than justice to the evidence. Dr Zapata-Bravo clearly found a difference between the nature of the scars on the arms and the back. Whether they technically had a precise perimeter or not, his professional view was that their different appearance was consistent with his being conscious when they were inflicted.

[113]I think that there is force in this submission. Dr Zapata-Bravo plainly thought that there were material differences in the marks on the arms and back which were consistent with the appellant’s account. The UT’s analysis assumes that he was making wholly inconsistent statements in the same report; namely that the scars on the back were precise and must have been inflicted whilst unconscious, and yet that the two scars on the arms were also precise (although different from those on the back) but could have been caused whilst the appellant was conscious. In my judgment that potential inconsistency should have been explored before concluding that Dr Zapata-Bravo had made such an apparently obvious contradiction. The point is underscored by the fact that although it is true that Dr Zapata-Bravo did not himself think that someone could be restrained and suffer precise scarring, other experts did. There was not the unanimous view about this which the UT claimed was the case.

[114]The second difficulty which follows from the UT’s analysis is that it rejected Dr Zapata-Bravo’s evidence that it is possible that if the appellant had fainted and temporarily lost consciousness, he might have remained unconscious when further pain was inflicted if he was weak and undernourished. This was obviously a matter which the UT considered was potentially important because, by agreement with counsel, it led to a particular question being posed to Dr.Allam, an anaesthetist. She was specifically asked whether someone would wake if unconscious through fainting and further pain was inflicted. She did not in fact answer that question. She said that the time taken to return to consciousness after fainting would typically be very short but that it might be longer if the person was in an unhealthy and physically weak state. She did not, however, express a view on the specific issue of whether a victim in this situation might remain unconscious when subjected to further pain.

[115]Notwithstanding this, the UT concluded (para.343) with respect to Dr Zapata-Bravo’s opinion about this that “on the medical evidence as a whole, that was an unlikely explanation of the fact that he had not woken up.” Mr Drabble contends, and I agree, that there was no evidential basis for this conclusion. The only expert who opined on it was Dr Zapata-Bravo himself, who expressed the view that this was a possibility. Perhaps the UT was influenced by its finding that the scarring would have taken ten minutes. Whilst no-one appears to have quibbled with the view expressed by Dr Zapata-Bravo on that point, nevertheless it was not a matter of medical expertise but one on which the Tribunal itself was able to make an assessment. Since both Dr Odili and Dr Zapata-Bravo thought that the burns on the arms were inflicted when the rod was at its hottest, there is no reason to suppose that the remaining scars could not have been inflicted very rapidly without the metal rod significantly cooling. I find it hard to see how the UT could accept this evidence at face value and it may have materially affected its reasoning. Having said that, I accept that there was evidence on which the UT could make this finding, however unsatisfactory it was. But even on that premise, there was still in my view no proper basis for concluding that the possibility of remaining unconscious following his fainting was an unlikely explanation of the fact that he had not woken up. In my view the UT is here making a finding which it was not qualified to make. I do not accept that Dr Allam’s silence on the point justified this conclusion.

[116]It can be said that it was for the appellant to satisfy the UT that he had been subjected to torture, and he, or at least his lawyers, could and should have clarified with the expert witnesses – all of whom were the appellant’s own witnesses - matters which have been left obscure and which, if clarified, would have assisted his case. For example, Dr Zapata-Bravo might have been asked to explain why, if he accepted that the scarring on the arms was relatively precise, he believed that the different nature of the scarring on the arms nonetheless justified his conclusion that the appellant may have been conscious when those burns were inflicted. He may also have noted the silence of Dr Allam with respect to the particular question posed to her which might in part have been because she does not seem to have been properly instructed. Sales LJ has placed significant emphasis on this, and I respectfully see the force of his observations. But I do not think that these failings should be held against the appellant. The nature and placing of the scars provided strong prima facie evidence of torture, at least to the lower standard, and in these exceptional circumstances I think it was for the Secretary of State to establish that the obvious explanation for the scars was not in fact the correct one. Moreover, I think it may fairly be said that, at least in part, the basis on which the UT made its determination on the medical evidence did not really emerge until Dr Zapata-Bravo gave his oral evidence. The focus seems to have been elsewhere. Indeed, it is interesting to note that of the six questions posed to Dr Allam, five were concerned with the question whether a person could become effectively anaesthetised by drugs or alcohol so as to remain unconscious whilst being branded with a hot rod.

[117]To summarise: I have concerns about two findings of the Tribunal which were critical to its analysis: first, that the scarring on the arms must have occurred when the appellant was unconscious; and second, that if he had fainted as he alleged, he must have recovered consciousness when fresh burns were inflicted. I fully recognise that it is for the UT and not this court to assess the evidence. I also readily accept that in many contexts the reasoning would be adequate and the conclusion sustainable. But the Tribunal’s conclusion was, in effect, that the appellant had allowed himself to be anaesthetised and then branded with a hot metal rod. If not a moral judgment, it is certainly demeans the appellant. In my judgment the evidence needed to be particularly robust to justify such an unlikely conclusion. In my view it was not.

Disposal

[118]Accordingly, for the reasons I have set out, I do not accept that the conclusion of the Upper Tribunal to the effect that there is a very strong likelihood that the appellant’s injuries had been SIBP, was satisfactorily reasoned. In my judgment in critical respects the evidence was too equivocal or ambiguous to justify that inference. I would quash the decision. I do not, however, consider that if critical aspects of the evidence were clarified that it could not be open to the Tribunal to find that the branding was SIBP. Accordingly, I would remit the matter to a fresh tribunal.

Annex: guidelines issued by the UT, but not endorsed in this judgment

[1]When preparing medico-legal reports doctors should not – and should not feel obliged to - reach conclusions about causation of scarring which go beyond their own clinical expertise.

[2]Doctors preparing medico-legal reports for asylum seekers must consider all possible causes of scarring.

[3]Where there is a presenting feature of the case that raises self-infliction by proxy (SIBP) as a more than fanciful possibility of the explanation for scarring:-(i) a medical report adduced on behalf of a claimant will be expected to engage with that issue; it cannot eliminate a priori or routinely the possibility of SIBP; and

(ii) a judicial fact-finder will be expected to address the matter, compatibly with procedural fairness, in deciding whether, on all the evidence, the claimant has discharged the burden of proving that he or she was reasonably likely to have been scarred by torturers against his or her will.

[4]A lack of correlation between a claimant’s account and what is revealed by a medical examination of the scarring may enable a medico-legal report to shed some clinical light on the issue of whether SIBP is a real possibility.

[5]Whilst the medical literature continues to consider that scarring cannot be dated beyond 6 months from when it was inflicted, there is some medical basis for considering in relation to certain types of cases that its age can be determined up to 2 years.

[6]Whilst if best practice is followed medico-legal reports will make a critical evaluation of a claimant’s account of scarring said to have been caused by torture, such reports cannot be equated with an assessment to be undertaken by decision-makers in a legal context in which the burden of proof rests on the claimant and when one of the purposes of questioning is to test a claimant’s evidence so as to decide whether (to the lower standard) it is credible.