Fair and just hearings for survivors of torture: the case for a paradigm shift in UK asylum appeals

K Law (General);RA1001 Forensic Medicine. Medical jurisprudence. Legal medicine

Moultrie, Patricia Anne ; Murdoch , James

University:University of Glasgow

Department:School of Law

关键词: UK asylum appeal, torture survivors, medical evidence in tribunals, medical expertise in tribunals, adversarial procedure in tribunals, psychiatric consequences of torture, traumatic memory and testimony giving, rape and testimony giving;   

Others  :  http://theses.gla.ac.uk/3970/1/2013MoultrieLLM.pdf

来源: University of Glasgow

【 摘 要 】

This thesis seeks to answer the question;Does current practice within the asylum appeal tribunal take sufficient account of the effects of torture on the individual to enable it to provide fair and just hearings and safe decisions for appellants who have been tortured and if not could practices from other jurisdictions of the UK tribunal system be adopted to improve access to justice for these appellants?Review of scientific literature reveals the pervasive effects of torture on memory and ability to recount detail of torture experience. Review of current practice within the asylum appeal tribunal reveals a lack of understanding of these effects and inappropriate reliance on discredited indicators to cast doubt on the appellant’s credibility. This collides with the adversarial system and a prevalent culture of disbelief to significantly reduce appellant’saccess to justice. Where asylum is at issue such an unjust decision may put the appellant’s life at risk by allowing the individual to be removed to their country of origin to face persecution. The conclusion drawn from this research is that the adversarial system employed by the asylum appeals tribunal is not fit for purpose in asylum appeals particularly where the appellant has been the victim of torture, nor does it meet domestic and international expectations. Asylum appeals are not party to party appeals where it is appropriate for the tribunal to sit back and weigh up which party has “won”; rather the tribunal needs to behave proactively to ensure that all relevant facts have come to light and should seek to provide some equality of arms in these inherently unequal appeals. Asylum appeal tribunals should fully embrace the enabling and inquisitorial approach adopted by other jurisdictions within the Tribunal Service, shake free from a default position of disbelief and resist complacency arising from a belief that adverse decisions may not result in refoulment. Medical reports addressing evidence of torture are not available in all appeals involving a history of torture: medical evidence may be the only corroborative evidence of torture available and provide information as to impact of torture on the individual’s ability to give testimony. Medical evidence should be available in all cases where a history of torture is given and should be considered before any adverse findings on credibility are made. A deeply flawed approach to evaluation of such important expert evidence is shown and the suggestion made that access to medical expertise within the tribunal, as occurs in other tribunals, would be the most effective way to address this.