The Supreme Court has had to remind the immigration tribunal that self inflicted torture by proxy (SIBP) is inherently unlikely. Self inflicted torture by proxy is the least worst phrase so far devised for describing the idea — and it really is just an idea, a figment of someone’s fevered and revolting imagination, given there is next to no evidence it actually happens — that a person might willingly undergo torture by another person in order to bolster their asylum claim. The case is KV (Sri Lanka) v Secretary of State for the Home Department [2019] UKSC 10.

Facts of the case

Those with a delicate disposition should perhaps skip this paragraph. I can say I was involved in this case at the tribunal stage and found the evidence extremely distressing. The appellant had horrendous scarring on his back and upper arms indisputably caused by highly heated metal rods. The edges of some of the scars were very precise, meaning they could not have been caused when the appellant was conscious. Basically, he would have convulsed had he been conscious, causing the edges to be blurred. The appellant had consistently stated that he was unconscious during some of the torture.

I won’t ever forget the judges in the tribunal — not the representative for the Home Office, mind you, but the judges — asking experts to speculate whether heroin or acupuncture (!) could have been used to manage the pain if the scarring was inflicted by consent.

On the facts of the case, the tribunal had considered that there were only two possibilities:

1. That the appellant was tortured as claimed, or
2. That the scarring was due to SIPB.

The key medical expert in the case, Dr Zapata-Bravo, concluded that the scarring was “highly consistent” with torture and that SIPB was “unlikely.” The language of “highly consistent” was a clear reference to the Istanbul Protocol, on which more below.

The tribunal rejected the first possibility but were somehow ambivalent about the second. As Lord Wilson puts it (“respectfully”, no less — always a bad sign), if there really are only two possibilities and one is rejected, “you are necessarily concluding that the other real possibility represents what happened”.

General guidance

Giving the judgment of the court, Lord Wilson describes the Upper Tribunal determination as “mammoth”, involving “massive” effort by the three judges in order to give general guidance on the idea of SIBP. On appeal, though, the Court of Appeal considered that it had been inappropriate to issue guidance on such an unlikely alleged phenomenon and specifically held it was wrong that medical experts should routinely consider SIBP even when it was not proposed by the Home Office.

The Court of Appeal ruled that the general guidance given by the tribunal should therefore be ignored. This was not disputed in the Supreme Court and the general guidance given by the tribunal should therefore be considered truly dead and buried, never to be mentioned again.

Role of the medical expert

In the Court of Appeal, Lord Justice Sales (now a member of the Supreme Court, a bit awkwardly, but not sitting on this panel) had criticised Dr Zapata-Bravo for exceeding his remit as an expert by commenting on the appellant’s account of how the scars were acquired. Patten LJ agreed. Elias LJ disagreed in a dissenting minority judgment which was also rather critical of the tribunal’s reasoning.

In the Supreme Court, the Home Office felt unable to defend the observations of Sales and Patten LJJ and Lord Wilson holds that “it is clear that they are erroneous.” Can’t get much more definitive than that. It is entirely proper and indeed helpful for experts, where they feel able, to

offer an opinion about the consistency of their findings with the asylum-seeker’s account of the circumstances in which the scarring was sustained, not limited to the mechanism by which it was sustained.

If the doctor had restricted himself to saying the scars were caused by hot metal rods, that would have added little. When he correlated his findings of a difference between the presentation of the scars on the back and those on the arm with KV’s account of how the alleged torture had proceeded,

he was giving assistance to the tribunal of significant potential value; and it never suggested that he lacked the expertise with which to do so.

Further, the words “trauma described” in the Istanbul Protocol cover the wider circumstances in which the injury is said to have been sustained and are not restricted, as Sales LJ suggested, merely to the mechanism by which the injury was caused.

Finding of self infliction by proxy

Lord Wilson closes his judgment with criticism of the reasoning of the tribunal. He observes that the judges had failed to address the differences between some of the scars and had failed to remind themselves that SIBP was inherently unlikely. There was evidence that torture by state agents was widespread in Sri Lanka at the relevant time: “by contrast, evidence of wounding SIBP on the part of asylum-seekers was almost non-existent”.

The appeal is remitted to the tribunal to determine again.

Hopefully they will do a better job next time. The judgment of the Court of Appeal and the Supreme Court was clearly that the tribunal had been wrong to embark on an investigation into this alleged phenomenon of SIBP and had failed to take proper care on the facts of the case. Judges would be wise to avoid this kind of fevered speculation in future, unless there really is very good reason indeed.