On Wednesday of last week, 6th March, the Supreme Court handed down its judgment in the case of KV (Sri Lanka) v Secretary of State for the Home Department [2019] UKSC 10. Charlotte Bayati, of Chambers’ immigration team, was part of the legal team who represented the Appellant KV led by Richard Drabble QC and instructed by Arun Gananathan of Birnberg Peirce.
The judgment importantly confirms that the primary source of guidance for medical experts when assessing injuries and their likely causation is the Istanbul Protocol. Further, Lord Wilson made clear that the majority of the Court of Appeal’s conclusion that a medical expert should only consider whether the injuries could have been caused by the trauma claimed (the mechanism) was erroneous and that a medical expert is able, within his expertise, to give an opinion about the consistency of his findings with the claimant’s account of how the injuries were sustained, not simply limited to the mechanism by which it was sustained.
In the judgment, the Supreme Court recognised that, whilst acknowledging that the issue of self infliction of scars by proxy (‘SIBP’) may in certain circumstances be a relevant consideration, it was important to take into account factors, for example, that it is an extreme measure for a person to cause such injuries and pain to himself; that he would have needed the assistance of someone with medical expertise but prepared to act contrary to medical ethics; that SIBP was ‘generally so unlikely’; that if the wounding was SIBP, an explanation had to be found for the number of scars and an explanation had to be found for the presentation of the scars.
Noting the lack of evidence of SIBP, Lord Wilson observes:
32. (…) That there was extensive torture by state forces in Sri Lanka in 2009 was well established in the evidence before the tribunal. For example at para 187 of its determination it quoted an EU report dated October 2009 as follows:
“International reports indicate continual and well-documented allegations of widespread torture and ill-treatment committed by state forces (police and military) particularly in situations of detention. The UN Special Rapporteur on Torture has expressed shock at the severity of the torture employed by the army, which includes burning with soldering irons and suspension of detainees by their thumbs.”
33. By contrast, evidence of wounding SIBP on the part of asylum-seekers was almost non-existent. The tribunal referred at para 11 to just one unreported decision in 2011 in which it had concluded that the wounding had been SIBP.
Lord Wilson’s conclusion then draws on Lord Justice Elias’ dissenting judgment below in the Court of Appeal:
35. Elias LJ offered a summary in para 101:
“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 and ethical standards, and who had access to the relevant medical equipment.”
That was his view. It should also, I suggest, be ours.
The judgment has attracted substantial media coverage: on Channel 4 news on 6th March, in The Guardian on 6th March and in The Times on 7th March 2019.
Related barristers: Charlotte Bayati
