KV (Sri Lanka) v Secretary of State for the Home Department

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.

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.

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.

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.

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.

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

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.

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.

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.

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 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.

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”.

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.”

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.

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

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;

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

whether it is possible and with any precision, to age such scarring by any means.

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.

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.

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.

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.

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.

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:

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:

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.

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).

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.

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.

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.

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.

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:

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.

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

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.

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:

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:

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).

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.

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.

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.

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.

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.

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.

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.

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.

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:

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].

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:

Mr Drabble did not criticise this direction.

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.

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.

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]).

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

The UT then considered some further evidence which it is not necessary to go into, before setting out its conclusion at [364]-[367]:

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.

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

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 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.

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.

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.

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).

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

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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].

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.

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.

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.

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).

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.

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:

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.

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.

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.

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.

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.

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].

For the reasons I have given, I would dismiss the appeal.

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:

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.

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.

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.

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.

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.

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.

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.

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.

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.

I agree.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.)

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.

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.

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.

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.

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.

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.

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.

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.