There has been a significant decision in the Inner House of the Court of Session – the Scottish equivalent to the Court of Appeal – on the Home Office’s use of language analysis for the determination of origin, or ‘LADO’. The decision allowing the two conjoined appeals both by a two to one majority, is available on the Court of Session’s own website at M.AB.N. and K.A.S.Y. v. The Advocate General for Scotland representing the Secretary of State for the Home Department [2013] CSIH 68 (12 July 2013). The Home Office have (it is calculated) until 23rd August to decide whether to appeal to the Supreme Court, but the Inner House decision is significant and practitioners should be aware of it irrespective of whether there is any further appeal.

For background, readers are referred to a previous post on this blog, Eliza Doolittle Exposed As Cockney Flower Girl Shocker, and to the comprehensive study by Sarah Craig, Lecturer at Glasgow University, The use of language analysis in asylum decision-making in the UK – a discussion [2012] JIANL 26 (3) pp 255 – 268. The current judicial learning south of the border is RB (Linguistic evidence Sprakab) Somalia [2010] UKUT 329 (IAC) (15 September 2010) and the subsequent Court of Appeal decision RB (Somalia) v Secretary of State for the Home Department [2012] EWCA Civ 277 (13 March 2012).

The challenge in RB focussed on the defects of form in the LADO reports produced by the Swedish company that the Home Office use, namely non-compliance with the Tribunal’s own Practice Directions for expert reports, and in particular the anonymisation of the personnel involved in producing them. The Scottish appellants have been able to mount a far more comprehensive attack because they were armed with a 22 July 2009 Opinion of the late Lord MacPhail, who had granted the statutory review application of the second appellant. Lord MacPhail’s Opinion is reproduced in full at para. [18] of the Inner House decision and readers are advised to begin their reading of the Inner House decision there.

Lord MacPhail, who died less than three months after he wrote this Opinion, was a revered figure on the Scottish legal scene. Not least, he was the author of the leading Scottish textbook on the law of evidence. His critique of the purportedly expert evidence inevitably carried enormous weight with the Court of Session. There were unanimous expressions of dissatisfaction across the otherwise divided court over the fact that the Secretary of State had not seen fit to furnish Lord MacPhail’s Opinion to either the Upper Tribunal or the Court of Appeal in RB. The decisions in RB might very well have been different if it had been.

While Lord MacPhail was critical of the defects of form that were later to form the principal basis of the challenge in RB – anonymity, non-compliance with Practice Directions – his focus was principally on the defects of substance, namely that the report in K.A.S.Y.’s case had not been compiled by personnel qualified to offer the opinions that they gave. The appellant was said in the report to speak with certainty a form of Somali spoken only in Kenya, when there was no indication on the face of the report that the personnel who had spoken to the appellant (by telephone, for 18 minutes) had ever been to Kenya or had made any study of Somali as spoken there, nor any indication of which language or variety of language the interview was conducted in, nor even whether the person who conducted spoke the appellant’s claimed language (Reer Hamaar). The analysts had been supervised in the preparation of their report by a linguist who did not appear to speak Somali in any form, or to have studied that language. The report offered the opinion that the appellant lacked knowledge of her home area, without identifying what the author understood the home area to be or stating any qualification to assess the appellant’s knowledge in that respect, or specifying what knowledge the appellant was supposed to have lacked. The report purported to assess the appellant’s credibility, by for example asserting that her answers sounded “rehearsed.” The LADO company could not, in Lord MacPhail’s opinion, offer any evidence about country background knowledge or credibility, since the company did not claim to have expertise in country knowledge or assessment of credibility.

The Inner House adopted and approved Lord MacPhail’s critique, and applied similar criticisms to the report in the case of the first appellant, who had not had the benefit of a decision from Lord MacPhail. The reports failed to disclose “any intelligible basis of expertise which might justify giving value to either of their conclusions [59].” The Upper Tribunal and the Court of Appeal had not intended [65] to relieve the decision-maker of the need to assess the relevance of each individual report it had before it by reference principally to the qualifications of the personnel concerned to make that assessment [70]. An appellant might challenge the validity of a LADO report without obtaining his own contra-report [66].

The Inner House, by a majority, also disagreed with the blanket approval of the use of anonymised personnel as given in RB. The Court’s views on that matter may be obiter; and anonymity may or may not be a red herring if the essential question is whether a purported expert has the expertise he purports to have. If possession of relevant expertise is not apparent on the face of a report, it may be neither here nor there whether the person concerned is named and unqualified or anonymous and unqualified. What matters is the lack of qualification.

So there we have it. The Court of Session has provided clear guidance that language analysis reports are just expert reports, like any other. They are not pixie dust. Each individual report must be read, analysed, and interrogated, just as we would all (practitioners and judiciary alike) do with any other form of expert report.

Even a generally reliable expert must be judged in the context of their individual reports. In simple terms an “expert” is only as good as her or his last report.

LP (Sri Lanka) [2007] UKAIT 00076 at paragraph 41

And most usefully of all, as the Home Office well knows, one need not commission a contra-report to be allowed to point out that the emperor is wearing no clothes.

The litigation team were Mungo Bovey QC (Murray Stable) and Dan Byrne (Axiom Advocates) instructed by Vernie McCusker of McAuley McCarthy Solicitors for the first appellant; Michael Howlin QC (Hastie Stable) and Joe Bryce (Murray Stable) instructed by Frances Farrell of Peter G Farrell Solicitors for the second appellant. Assistance was generously given by Sarah Craig, Lecturer at the University of Glasgow University of Glasgow and by Professor Peter Patrick of the University of Essex.