[2024] UKUT 00142 (IAC)

Mr Ó Ceallaigh submits that in considering whether an individual has acted dishonestly in this context, the Tribunal must take account of the inherent improbabilities: (i) that none of the many thousands of people accused were innocent (including the many hundreds found by independent judges not to have cheated); (ii) that ETS’ processes, so badly compromised wherever they can be tested, are otherwise infallible; and (iii) that test operators would successfully run a well-advertised and highly in demand test whereby everyone was required to cheat – without being caught. Mr Ó Ceallaigh submits the evidence before the Tribunal must be ‘strong’ before the Tribunal should consider the allegation proved on the balance of probabilities. There is, he submits, no room for papering over the cracks in the Secretary of State’s evidence.

There is little to be gained by any detailed excursion by us into the inherent probability or improbability of any particular factor that may be relevant. The propositions advanced by Mr Ó Ceallaigh are so general that they are nothing more than rudimentary. To say it is inherently improbable that none of the many thousands of people accused were innocent, is to vastly understate the reality when it is uncontroversial that there was ‘widespread cheating’. The act of cheating was not in this context, an ‘improbable event’.

Mr Ó Ceallaigh refers to the now much publicised litigation concerning the Post Office Horizon software (“the Post Office litigation”) in which it is now apparent that a large number of people faced serious allegations of theft and false accounting in reliance on computer systems. In Alan Bates and Others v Post Office Limited [2019] EWHC 3408 (QB), Fraser J resolved various issues in group litigation between the Post Office and a number of sub-postmasters, arising from alleged defects in an electronic accounting system which had purportedly caused shortfalls for which the Post Office maintained the sub-postmasters were liable. Fraser J found , at [968 – 978], that the Post Office was wrong to contend that the Horizon system was extremely unlikely to be the cause of shortfalls in branches. He accepted, on the evidence, that it was possible for bugs, errors or defects in the system to have the potential to cause apparent or alleged discrepancies or shortfalls in the sub-postmasters' branch accounts or transactions, and that had happened on numerous occasions.

We will return to the evidence before us regarding ETS, its systems and its processes but we readily accept that no system or process is infallible. It would be surprising if any credible witness were able to say that any hardware (mechanical or electronic) or any software, even that with advanced security features, is entirely infallible. That is simply a matter of common sense. A system or process that may appear to be impenetrable is always at risk of some failure, malfunction or manipulation. The difficulty with the comparison that Mr Ó Ceallaigh seeks to draw is that unlike in the Post Office litigation, there is no evidence that there were bugs or glitches in the hardware or software used by ETS, or manipulation of results by ETS itself that caused tests to be erroneously attributed candidates. Here, there is a wealth of evidence that colleges in the UK had devised an operation to ensure that candidates were able to succeed in an English language test that they required to support an application to the SSHD, in which the candidate was complicit. Of the possible types of fraud identified by the parties it is striking to see that in at least four of the methods, it is common ground that the candidate is complicit. That is entirely distinct from the position sub- postmasters found themselves in.

We accept it is improbable that colleges ran an operation where everyone cheated. A test centre that achieved a 100% pass rate for every test session would immediately arouse suspicion. However, Mr Ó Ceallaigh’s central submission is that there was widespread cheating. One only has to turn to the reference to ‘fraud factories’ in the judgement of Underhill LJ in Ahsan and Others and the general evidence of widespread fraud that was referred to, at [62] to [66] of the decision in DK and RK to see the prevalence of the fraud and the way in which it operated. In R (on the application of Saha and Another) v Secretary of State for the Home Department (Secretary of State’s duty of candour) [2017] UKUT 17, the Tribunal accepted evidence of widespread abuse of testing by the Elizabeth College Test Centre. The centre was not operating genuine tests under genuine test conditions at the material time.

At one end of the spectrum, where the SSHD is able to point to reliable and credible evidence that all TOEIC tests undertaken at a college on a particular day or during a particular period, have been classified by ETS as ‘invalid’, there is an inherent probability that the individual engaged in dishonesty, and that establishes a strong case for the individual to answer. In DK and RK the Tribunal referred to the trial at Isleworth Crown Court of some of those involved in the fraudulent activities at New London College, the test centre that had issued a TOEIC certificate relied upon by RK. At the other end of the spectrum there will inevitably be cases where the evidence points to the college having been involved in tests that ETS have classified as “invalid” or “questionable”. That is not however to say that it is inherently improbable that the college ran an operation where everyone cheated or no-one cheated. The judge will take that evidence into account in the overall assessment of the evidence, but it is unlikely to assist a judge to determine the inherent probability and improbability of a fraud being operated at that college.