In asylum applications where allegations of physical torture and ill-treatment form an aspect of the claim, evidence of scars, lesions, marks and other tissue damage, can be important.
Increasingly, applicants are arranging for photographs to be taken to record injuries, either at their own initiative or on legal advice. Photographs are sometimes taken in the country of origin soon after injuries have been inflicted, and sometimes on arrival in the UK.
Photographs in themselves serve as identifiers, but it is often necessary to supplement the identification of such evidence through photographs with medico-legal documentation. Medical experts are then asked to interpret these images.
Increasingly medical experts are also taking photographs themselves to support their clinical findings. Photographs are not however essential to a comprehensive report or mandated by the courts.
Where photographs are being taken it is essential to ensure that such pictures are:
- of adequate quality
- securely stored
- retained in an original format
- properly authenticated and
- competently analysed.
Where these requirements are not followed cases can become unnecessarily complicated, sometimes resulting in refusals at first instance and on appeal.The following criteria, developed over more than a decade, may be helpful to optimise the use of photography in such cases.
The advent of digital photography (and even the ubiquitous camera phone) makes it much easier to comply with these requirements. Inadequate shots can readily be checked, wiped and repeated immediately. Images stored as files usually come with the time when and geographic location where the stored image was taken embedded in the metadata (see below).
Quality
Are the images optimal (or at least adequate) for interpretation?
- Are the photographs in focus? Those without particular skills should use auto-focus facilities, but bear in mind that the chief subject of the photograph may not be the object in focus
- Are they properly lit? Direct light causes reflected glare and redeye. Indirect day-light or artificial light, reflected from a white surface, avoids this problem.
- Are they well composed? Do they (either individually or as a series of photographs):
a) show the entirety of the lesion and sufficient surrounding tissue to demonstrate the location on the body. Is a magnified ‘close up’ images of regions of interest also necessary? Can the two images be linked so as to demonstrate location and the body part affected?
b) serve to identify the individual (in at least one image taken at the same time and place as photos of specific lesions).
Storage
Have the original digital images been saved and backed up? Ideally this should be done in two independent locations. ‘Originals’ may be retained on the camera or phone, but copies (ideally multiple copies) should be saved to computer, disk, memory sticks, cloud etc.
We have seen several cases where no digital copy has been retained and the only hard copies were given to the Home Office or the courts, but then lost by them and unavailable to further proceedings.
Where hard copies of the images (prints) are the only available or surviving medium these should be scanned to the highest colour resolution available and the scanned copies stored as above. Once again, if no other means is available a camera phone can be used to take an image of a print. Images which are scanned in black and white or faxed invariably loose significant resolution and focus and may not be adequate for purpose.
Provenance/authentication [i]
1.Is the photograph of the subject and is the lesion actually present on the skin of the subject?
This can be addressed by:
a. including the face and at least one identifying scar or mark in a single photograph
b. a witness statement from the legal representative or a medico-legal report from a doctor who has compared the photograph with the body of the individual during physical examination and makes precise note of location and relative position.
2.Were the photographs taken at the time and place described by the applicant in their witness statement?
Almost all phones and digital cameras store metadata, e.g. data about the image. This invariably includes the date when and often includes the geographical location where the photograph was taken. Simple methods for accessing metadata are given in reference[ii]. Although it is possible to delete or change metadata using sophisticated tools, the act of doing so is likely to be traceable and alteration may be far more difficult to conceal than deletion.
Expert interpretation
Although clearly not ideal, it is possible to draw some sound medical conclusions about the cause of a pathology by examining images taken by various techniques without seeing the subject. Indeed, radiology and tele-dermatology rely on this fact. In such circumstances any medico-legal reports should be described as preliminary with a commitment to follow up with a physical examination as soon as reasonably practicable.
However, the interpretation of photographs of scars and other lesions left by violence is not included in most doctors’ training. That said, every medical student is taught the use of structured methods for interpreting images such as chest x-rays. Forrest MLS doctors routinely use an analogous methodology to extract the maximum information from photographs of scars.
Occasionally, a medical examiner may be called upon to provide a preliminary opinion on photographic evidence relevant to a claim of torture or ill-treatment without the opportunity to examine the subject at the time. This can occur under various different circumstances. To give concrete examples:
1. a medical expert was provided with photographs and a witness statement the day before the substantive asylum interview with the Home Office. (This contingency has also arisen where the subject remained in prison or immigration detention pending removal.) In these situations, given the time available the doctor was only able to provide a preliminary report on the basis of the photographic evidence and the subjects’ statements. In these cases, in their preliminary opinion the medical rapporteur must be careful to provide caveats (for example, “if the images are a true record of the back of the subject”) and usually undertake to examine and provide a comprehensive medico-legal report as soon as reasonably practicable, within a few weeks.
In one memorable case the author of the Home Office Reasons for Refusal letter included what amounted to an accusing the doctor of medical negligence for expressing any clinical view without a physical examination. On appeal, after a full physical examination and upon delivery of a comprehensive medico-legal report confirming the preliminary opinion and oral evidence in person, the appeal was allowed during the hearing itself, without delay.
2. medical experts were expressly instructed to consider only photographs and relevant past legal documents, but not to examine the subject (who had already been examined by another medical experts whose conclusions but not his findings were in dispute). See KV (Sri Lanka) v Secretary of State for the Home Department [2017] EWCA Civ 119. http://www.bailii.org/ew/cases/EWCA/Civ/2017/119.html)
3. a medical expert was given two sets of photographs both of which had been taken some years ago and some years apart. However, in each set of photographs the shape, colour, position and location accorded precisely with subsequent examination findings. Taken together these sets of photographs served to clearly identify a good approximation for the date of the injury as related by the subject beyond that which could normally be given on examination (six months to one year)[iii]. The age of the scars had previous been contested in the Home Office refusal letter.
4. a medical expert was supplied with a complex mass of photos of scars from many years previously, subsequent poor quality body maps, and black and white reproductions of other photographs (some being copies of faxes). The expert also had the opportunity to physically examine the subject. By the time of the physical examination the scars had faded to a point where it was difficult to match the lesions found to still be visible to the naked eye on physical examination with the various original images.
In this case photography using crossed sheets of linear polarising film rendered the scars sufficiently visible to show that they matched the old photos precisely in shape, position and location. Cross polarisation is used by expert forensic photographers, who report that it is most likely to be informative in faint scars of partial thickness burns in dark skin. Examination through the filters will identify cases where it may prove helpful. This technique is currently the subject of active investigation by Forrest doctors.
Conclusions
These examples show that properly taken, properly used photographs can be a valuable adjunct in asylum applications where allegations of physical torture or ill-treatment form an aspect of the claim.
It is always important to remembered the following: “Witness and survivor testimony are necessary components in the documentation of torture. To the extent that physical evidence of torture exists, it provides important confirmatory evidence that a person has been tortured. However, the absence of such physical evidence should not be construed to suggest that torture did not occur, since such acts of violence against persons frequently leave no marks or permanent scars.” Paragraph 161, Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Istanbul Protocol, United Nations, New York and Geneva, 2004[iv].
References
[i] “Authentication is the process of convincing the court that a document (which would include a digital image) is what it purports to be: of proving the origin of the image and that it has not subsequently been altered (or, where alteration has occurred, proving the nature of the alteration). Even though an image has been authenticated, however, the court will still need to determine its weight as evidence, its probative value. This depends both on the degree of authentication and the extent to which the image provides evidence of the fact in question.” House of Lords Science and Technology Committee Fifth Report.
https://www.publications.parliament.uk/pa/ld199798/ldselect/ldsctech/064v/st0501.htm
[ii] Digital photographs are stored as .tif or .jpeg files on the device on which they were taken. Each file also contain the metadata. This information can be displayed using a digital image metadata viewer. The simplest of these for most purposes is part of Windows Explorer. (Right click on the image and select “file information” from the menu that appears).
For further information, see: https://en.wikipedia.org/wiki/Comparison_of_metadata_editors
It is possible to modify metadata, but deletion is immediately obvious. If alteration is suspected an expert in digital forensics should be sought.
[iii] See Treatment and management of wounds and scars of torture, Arnold, F, Wounds UK, 2009, Vol 5, No 4
http://www.wounds-uk.com/pdf/content_9315.pdf
[iv] http://www.ohchr.org/Documents/Publications/training8Rev1en.pdf