ERRORS OF LAW AND ERRORS OF FACT
[4.29] Judicial review is concerned with the legality of decision-making processes and outcomes, not with their merits.[773] In constitutional terms, this distinction between legality and merits (or �review’ and �appeal’) is based on the understanding that it is not the function of the courts to ensure that a decision etc is objectively �right’, but rather that it is lawful.
Questions of legality will, as such, ordinarily centre on whether the decision-maker has understood â€?correctly the law that regulates his decision-making power and [given] effect to it’,[774] and the courts have here developed an increasingly robust ultra vires doctrine under which any error of law made within a statutory frameÂwork by an inferior body or tribunal is, subject to very few exceptions, reviewable. However, of equal importance in terms of safeguarding the rule of law is the approach of the courts to errors of fact. Although the courts do not typically review for error of fact—such review is understood to have the potential to lead courts towards the constitutionally forbidden realm of an â€?appeal’—it is accepted that some errors of fact should be regarded as a species of illegality (whether classified under that heading or under substantive review). The courts will thus review a decision: where there has been an error of precedent fact; where the decision-maker has failed to take into account all relevant considerations or has taken into account irrelevant considerations; where a decision has been reached on the basis of no evidence; and/or where there has been an error of material fact. The corresponding intensity of review will then depend on the context of the application for judicial review: while decisions taken in areas of wide discretion will prompt judicial restraint ([4.20]-[4.21]), decisions that have an impact on an individual’s fundamental rights may be subject to â€?anxious scrutiny’.[775]Errors of Law
The Anisminic Principle
[4.30] The authority that is most famously associated with the proposition that any error of law is judicially reviewable is Anisminic Ltd v Foreign Compensation CommisÂsion.ls9 Prior to that case—which concerned the lawfulness of an administrative tribunal’s determination about Anisminic Ltd’s entitlement to compensation—the courts drew a distinction between errors of law that went to the jurisdiction of a decision-maker such as an inferior court or tribunal, and errors of law that were made within jurisdiction.
Errors of law that went to jurisdiction had always been subject to review, as any error as to the nature of a decision-maker’s power would, if unchecked, effectively allow the decision-maker to redraw the boundaries of its authority.[776] [777] However, where an error of law was made within the decision-maker’s jurisdiction, the approach of the courts was different and shaped by what was, in essence, a separation of powers argument. The courts here accepted that, where statute entrusted a body with a decision-making power, the decision-maker was entitled to make errors of law or of fact so long as those errors were made within their jurisdiction. The only exception to this rule was where there was an error of law on the face of the record, as the courts could in those circumstances intervene to quash decisions that were self-evidently unlawful.[778][4.31] Post-Anisminic any error of law is now regarded as going to jurisdiction, and the distinction between decisions within and without jurisdiction is redundant for the purposes of judicial review[779] (as too is �error of law on the face of the record’[780]). Judicial review’s central doctrine is, instead, the ultra vires doctrine which underpins most developments in judicial review (at least when proceedings concern the lawfulness of decisions or other measures taken within the framework of statute[781]). This shift from jurisdiction to ultra vires has, among other things, also resulted in the law rejecting a distinction between errors of law that are �void’ and those that are merely �voidable’ (that is, made within jurisdiction).[782] This is because the ultra vires doctrine entails that decision-makers must always be bound by the demands of legality (see [4.05]) and it is, in consequence, only when all of those demands are observed that a decision-maker �is as much entitled to decide [a] question wrongly as it is to decide it rightly’.[783]
Courts of Law
[4.32] One area of confusion in the post-Anisminic era has concerned the reviewability, for errors of law, of decisions of lower courts and tribunals.
While Anisminic was read as establishing that the jurisdictional distinction had been abolished in respect of the decisions of administrative tribunals and decision-makers, it was doubted whether it had also been abolished in respect of the decisions of lower courts such as coroner’s courts, county courts, and magistrates’ courts.[784] The confusion was caused in large part by influential dicta that suggested both that Anisminic was not intended to apply to lower courts168 and that finality clauses in respect of the decisions of lower courts would limit judicial review to the previous jurisdictional approach169 (although on the questionable constitutional value of finality clauses see [4.10]). Those dicta have, however, since been overtaken by developments in the case law,170 and the previous practice whereby lower court decisions had in any event been reviewed is now accepted as good law. Challenges to the decisions of, among others, coroners’ courts,171 county courts,172 and magistrates’ courts173 are therefore not only possible but wholly consistent with the Anisminic principle.[4.33] This acceptance of Anisminic represents a further strengthening of the ultra vires doctrine,174 although the case law has at the same time emphasised the need for caution when reviewing lower court decisions.175 One reason for this is that an absence cause); Re J MCL' Application [1986] NI 397 (decision of a county court judge in a civil matter); and Re McLaughlin’s Application, 27 October 1989, unreported (decision of a county court judge in a civil matter).
168 R v Belfast Recorder, ex p McNally [1992] NI 217, 223ff, Lowry LCJ.
169 Re A Company [1981] AC 374, 382—3, Lord Diplock; and R v Hull University Visitor, ex p Page [1993] AC 682, 703, Lord Browne-Wilkinson.
170 Principally in Re Belfast City Council’s Application [2008] NI 277, 281—5.
See also Re Molloy’s ApplicaÂtion [1998] NI 78, 86-7.171 See, most famously, R v Greater Manchester Coroner, ex p Tal [1985] QB 67 (whether coroner had, among other things, erred in law in admitting hearsay evidence: application dismissed). And for instances of challenges to coroners’ decisions in Northern Ireland see, eg Re Northern Ireland Human Rights CommisÂsion’s Application [2002] UKHL 25, [2002] NI 236 (whether coroner correct to rule that the Commission did not have the power to intervene in proceedings: application granted) and Re Bradley’s Application [1995] NI 192 (whether coroner had erred in law by permitting the jury to reach a verdict that pointed towards a finding of justifiable homicide: application granted).
172 Eg, Re PM' Application [2007] NIQB 2 (whether a county court judge’s order that documentation should be produced to a police officer was unlawful: application granted); Re J’s Application [2004] NIQB 75 (challenge to judge’s decision to grant a father direct, unsupervised access to his child: application disÂmissed); and Re Fair Employment Commission for Northern Ireland’s Application, 30 November 1990, unreported (whether county court judge had, inter alia, acted unlawfully by failing to give sufficient reasons, pursuant to s 29(2) of the Fair Employment (Northern Ireland) Act 1976, for the finding that the Commission had not made out a case of discrimination: application granted).
173 Eg, Neill v North Antrim Magistrates’ Court [1992] 4 All ER 846 (magistrate had erred in law in committing to trial on the basis of inadmissible evidence); Re DPP’s Application [2007] NIQB 10 (whether a Youth Court’s refusal to adjourn proceedings in an assault trial and its decision to dismiss all charges when the prosecution could not proceed should be quashed: application granted); Re DPP’s Application [2007] NIQB 3 (whether a resident magistrate’s refusal to adjourn proceedings at the request of the prosecution should be quashed for reasons of the resident magistrate’s alleged failure to carry out a proper inquiry into the need for an adjournment: application granted); Re Cunningham’s Application [2004] NI 328 (challenge to a resident magistrate’s decision to remand the applicant in custody where the magistrate had failed to consider all arguments made in respect of the merit of continued detention: application granted); Re Glen’s Application [2002] NIQB 61 (challenge to a resident magistrate’s refusal to stay proceedings against the applicant where there had been a loss of evidence by the police: application dismissed); and Re McFadden’s Application [2002] NI 183 (challenge to a resident magistrate’s failure to give reasons for refusing to stay proceedings as contrary to Art 6 ECHR: application dismissed).
174 See R v Bedwellty Justices, ex p Williams [1997] AC 225, 232, Lord Cooke: �[O]ne can say... that the authorities now establish that the Queen’s Bench Division of the High Court has normally in judicial review proceedings jurisdiction to quash a decision of an inferior court, tribunal or other statutory body for error of law, even though the error is neither apparent on the face of the record nor so serious as to deprive the body of jurisdiction in the original and narrow sense of power to enter on the inquiry and to make against persons subject to its jurisdiction the kind of decision in question’.
175 The leading authority on the point is now R (Cart) v Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663, followed in, eg, Re DJ 1 and DJ2’s Application for Leave [2013] NIQB 20. See also Eba v Advocate General for Scotland [2011] UKSC 29, [2012] 1 AC 710, mentioned in Re TCM (a minor)' Application [2013] of caution could result in the High Court being overwhelmed by applications for judicial review made by individuals who, certainly in the criminal context, would wish to â€?put off the evil day’176 (the so-called â€?floodgates’ argument). The case law has thus established that the High Court should grant leave to bring applications for judicial review in the criminal context only where the error of law is â€?substantial’ and might lead to â€?demonÂstrable injustice’ or might have â€?substantial adverse consequences’ for the defendant;177 and case law on the review of decisions of coroner’s courts has likewise held that the courts will not entertain â€?satellite litigation’178 or, moreover, automatically grant a remedy merely because some error of law has been committed during an inquest.179 The courts have similarly noted that judicial review is a discretionary remedy and that it will ordinarily not be available where the individual has an alternative remedy that provides a fuller and more effective means of recourse, for instance an appeal.180
[4.34] One final point about lower courts is that statute may retain—and the higher courts recognise—the pre-Anisminic jurisdictional distinction for the purposes of damages actions against members of the judiciary.
For instance, in Neill v Wilson181 the issue was whether a resident magistrate could be sued for wrongful imprisonment by an individual who had been committed for trial in custody on the basis of inadmissible evidence. Under article 5 of the Magistrates’ Courts (Northern Ireland) Order 1981182 no action was to lie against a magistrate where an act was done �with respect to any matter within his jurisdiction’, and the High Court held that the admission of the evidence had here occurred within jurisdiction. Although the House of Lords had earlier quashed the committal on appeal in judicial review proceedings,183 the High Court referred to dicta in other House of Lords judgments to the effect that the Anis- minic principle did not apply to the interpretation of legislation of the kind in issue.184 It was thus only where acts were committed without jurisdiction that damages could sound,185 and even then article 6 of the Magistrates’ Courts (Northern Ireland) Order 1981 required proof of bad faith on the part of the magistrate.186NICA 31, para 33; and Re MT (Zimbabwe) [2011] NICA 16, para 4, quoting AH (Sudan) v Home Secretary [2007] UKHL 49, [2008] 1 AC 678, 692, para 30, Baroness Hale.
176 Neill v North Antrim Magistrates’ Court [1992] 4 All ER 846, 857, Lord Mustill.
177 Neill v North Antrim Magistrates’ Court [1992] 4 All ER 846, 857, Lord Mustill; and see also R v Bedwellty Justices, ex p Williams [1997] AC 225.
178 Re C & Ors Application [2012] NICA 47, considered at [2.37].
179 See, eg, Re Bradley’s Application [1995] NI 192, 203, Carswell LJ, citing R v Greater Manchester Coroner, ex p Tal [1985] QB 67, 83.
180 R v Bedwellty Justices, ex p Williams [1997] AC 225, 235, Lord Cooke (although it was held in the instant case that judicial review was available). On alternative remedies and judicial review see [2.34]-[2.35].
181 [1999] NI 1.
182 SI 1981/1675 (NI 26).
183 Neill v Northern Antrim Magistrates’ Court [1992] 4 All ER 846.
184 Namely Re McC (A Minor) [1985] AC 528, 546-7, Lord Bridge: �I do not believe that the novel test of excessive jurisdiction which emerges from [Anisminic], however valuable it may be in ensuring that the supervisory jurisdiction of the superior courts over inferior tribunals is effective to secure compliance with the law and is not lightly to be ousted by statute, has any application whatever to the construction [of the governing legislation]’ (here Magistrates’ Courts Act (Northern Ireland) 1964, s 15).
185 As in Re McC (A Minor) [1985] AC 528 (magistrates had power to try, convict, and sentence the respondent, but the power of sentence could be exercised only where the respondent had been informed of their right to legal aid; failure to give this information was thus in breach of a statutory condition precedent, and the magistrates had on the facts acted �without jurisdiction or in excess of jurisdiction’ within the meaning of the Magistrates’ Courts Act (Northern Ireland) 1964, s 15).
186 On bad faith see [5.51]-[5.52].
�Domestic’ Decision-makers
[4.35] The main exception to the Anisiminic principle is made when a decision-maker enjoys what may be termed a â€?domestic’ jurisdiction. â€?Domestic’ here denotes a set of rules, regulations, or arrangements that are internal to an institution or series of instituÂtions and which are thereby distinct from the ordinary law of the land. While the courts will here review a decision to ensure that it is taken within jurisdiction in the pre- Anisminic meaning of that term,[785] the scope for review is thereafter limited, â€?as the applicable law is not the common law... but a peculiar or domestic law of which the [decision-maker] is the sole judge. of which the courts have no cognisance’.[786] Examples of decision-makers with such jurisdiction include university visitors,[787] reliÂgious bodies,[788] and visitors to the Inns of Court.[789]
Errors of Fact
[4.36] Courts are generally reluctant to become involved in assessing factual disputes on an application for judicial review, as the courts are centrally concerned with matters of legality that are typically understood to preclude the need for fact-finding.[790] Although the distinction between �law’ and �fact’ may not always be easy to make—for instance, are inferences drawn from established facts to be regarded as matters of law, matters of fact, or matters of mixed law and fact?[791]—the courts have emphasised that matters of fact are for the original decision-maker and that the courts should for that reason be slow to intervene[792] (although the position is of course different where statute requires the reviewing court to make findings of fact[793]). This approach, which is reflected in the traditionally narrow approach of the courts to discovery and cross-examination in judicial review proceedings,[794] is of a more general importance, although it can be particularly pronounced where a matter is one of �fact and degree’. A matter of degree
is one upon which reasonable people may arrive at different conclusions given the same evidence and, as conclusions on such matters will often be reached by decision-makers who are more experienced on such matters than are judges, the courts accept that the decision-makers are better placed to make corresponding value judgements. So long as any final decision is not tainted by illegality, perversity, or procedural irregularity, it will thus stand.[795]
[4.37] There are, however, four forms of error of fact that will attract judicial interÂvention, namely: error of precedent fact; relevancy; â€?no evidence’; and error of material fact. The corresponding development of review for such errors has had an importance not just in terms of safeguarding common law understandings of the rule of law, but also in terms of ensuring that judicial review is compliant with various aspects of the ECHR.
Precedent Fact
[4.38] An error of precedent fact is made when a decision-maker takes a decision in the absence of facts which must exist objectively before the decision maker has the power of decision under legislation (such facts are sometimes also described as â€?jurisÂdictional’, although use of that term has been less frequent given the post-Anisminic demise of the jurisdictional approach to judicial review[796]: see [4.30]-[4.31]). Review for error of precedent fact can, as such, be linked to the ground of illegality, as the courts are here enquiring whether the decision-maker has the power to make the decision that they have purported to make. The courts are thus not concerned with the decision-maker’s evaluation of facts or the respective weight that has been given to a particular fact, but rather with the question whether the required facts exist so as to allow the decision-maker to exercise the power entrusted by the legislature. In the absence of the facts there can, in short, be no lawful exercise of the power.
[4.39] Arguments about errors of precedent fact are relatively rare. However, where the issue arises in proceedings, the courts will scrutinise decisions closely as errors of precedent fact would, if unchecked, allow subordinate bodies effectively to assume power for themselves. In Re Sherlock and Morris’s Application, Kerr J thus said that the court â€?will exercise its own independent judgment where a precedent fact requires to be satisfied’;[797] and in Re Obidipes Application[798]—which arose in the immigration context and where the precedent fact at issue was whether the applicant had illegally entered the UK[799]—Girvan J suggested that the approach of the courts to precedent fact will be more demanding where fundamental rights are in issue. While the court ultimately dismissed the application for judicial review, it emphasised that the decisionÂmaker’s reasonable belief that the applicant was an illegal entrant is not enough to establish the fact, which must instead be established with reference to the civil standard of proof. The court also stated that the standard of proof may be applied variably given the nature of the rights affected.[800]
Relevancy
[4.40] Challenges to decisions on the basis of relevancy can be linked to either of the grounds of illegality or substantive review/unreasonableness.[801] Relevancy here refers to a situation where a decision-maker has failed to take into account all relevant consideraÂtions and/or to disregard irrelevant considerations when making the determination. Considerations for these purposes will ordinarily be identified expressly or impliedly in the statute that underpins the decision (illegality), although the courts will also intervene where there are â€?matters so obviously material to a decision on a particular project that anything short of direct consideration of them... would not be in accordÂance with the intention of the Act’.[802] Challenges with reference to this latter kind of relevant consideration may thus sound in unreasonableness: the failure to take account of the considerations was so unreasonable that no reasonable authority could have acted in that way.[803]
[4.41] The orthodox judicial approach to arguments of relevancy is one that (a) enquires whether all relevant considerations have been taken into account by the deciÂsion-maker and irrelevant ones ignored and, if so, (b) allows the decision to stand subject to arguments of unreasonableness, perversity, and so on.[804] The rationale for this approach is that it enables courts to avoid becoming involved in disputes about the respective weights given to relevant considerations, although it is an approach that is not without exception. For instance, the courts have long been willing to subject deciÂsions that impact upon fundamental rights to a common law test of â€?anxious scrutiny’ where arguments of relevancy arise;[805] and the proportionality principle may also entail some modification of approach. The principle, which applies in Human Rights Act 1998 cases but which is of importance in judicial review more generally,[806] requires that courts set a decision against the interests affected by it and assess whether the decisionÂmaker has struck the appropriate balance between the two.[807] Should the proportionality principle continue to influence developments in judicial review, this would suggest that courts may have to ask not just whether all relevant considerations have been taken into account and so on, but also whether they have been reconciled in the balanced manner associated with proportionality review. However, to the extent that this perhaps posits increased judicial intervention, it may be that the scope for that intervention will be limited by judicial use of the â€?discretionary area of judgment’ doctrine that has been developed in tandem with the proportionality principle and which seeks to avoid undue judicial involvement in the decision-making process.[808]
�No Evidence’
[4.42] Decisions may also be challenged on the basis of the â€?no evidence’ rule.[809] This rule applies, at its highest, where a decision is unsupported by any evidence whatsoever, although it can also apply where it is argued that the existing evidence does not support the conclusion reached. A challenge of this latter kind would ordinarily be made on the ground of Wednesbury unreasonableness; that is, that the decision is so unreasonÂable that no reasonable authority that had cognisance of the evidence would have made the same decision.[810] Should a challenge be made with reference to the proportionality principle, this may, however, require the courts to lower the threshold for intervention, albeit subject to arguments about the â€?discretionary area of judgment’.[811]
Error of Material Fact
[4.43] It is finally possible to challenge a decision as vitiated by an error of material fact. Such errors are made where there is â€?misunderstanding or ignorance of an estabÂlished and relevant fact’ and/or where the decision-maker acts â€?upon an incorrect basis of fact’.[812] The prospect of review for such error is sometimes taken as indicative of the increasingly expansive nature of judicial review,[813] although it is at the same time unclear quite how far it entails closer judicial involvement in disputed questions of fact. More expansive authorities have, for instance, suggested that there is now a â€?wrong factual basis’ doctrine in administrative law[814] and that judicial intervention is justified where the error is material to the decision and where it results in â€?unfairness’ to the applicant (â€?fairness’ being said to be a matter of law).[815] However, a more orthodox approach regards error of material fact merely as one aspect of relevancy and holds that the courts should intervene only where the decision-maker has failed to take a material consideration into account.218 Any scope for further judicial involvement is, from this perspective, limited to that set by Wednesbury unreasonableness or, depending on context, by the proportionality principle and the discretionary area of judgment doctrine.219
[4.44] Notwithstanding this uncertainty about its implications, error of material fact has assumed a central—though not uncontested—position in case law regarding rights of access to independent and impartial tribunals under Article 6 ECHR.220 Article 6 ECHR requires that an individual whose civil rights are in issue should have access to a court or tribunal with â€?full jurisdiction’ in the matter,221 and case law in Northern Ireland and in England and Wales has raised the question whether the High Court has such jurisdiction given the nature of the traditional grounds for judicial review.222 In holding that the High Court has had the requisite jurisdiction, the courts have emphaÂsised that judicial review on ordinary grounds is sufficient for the purposes of Article 6 ECHR as it allows the courts to, among other things, review decisions for error of fact.223 That said, the cases in question were informed by considerations of the separaÂtion of powers,224 and some other case law has distinguished those authorities when finding that Article 6 ECHR has been violated precisely because the error of fact doctrine does not enable the High Court to substitute its own findings of fact for those of the original decision-maker.225 That case law should, however, also be read in the light of recent Supreme Court rulings that have narrowed the scope of application of Article 6 ECHR in the administrative law context, thereby rendering moot much of the debate about the required intensity of review.226
Home Department [2004] 2 WLR 1351 (immigration appeal tribunal erred by refusing to have regard to evidence which had not been before the tribunal at the time of the hearing but which had come to light before it made its decision). For case law applying E, in England and Wales, see, eg, R (Pharmacy Care Plus Ltd) v Family Health Services Appeals Unit [2013] EWHC 824 (Admin) and Jobson v Secretary of State for Communities and Local Government [2010] EWHC 1602 (Admin).
218 See, eg, Re Ds Application, [2003] NIJB 49, 57-8, para 40, Coghlin J, citing, among others, R (Thallon) v Department of the Environment [1982] NI 26, 49.
219 [6.25]-[6.26].
220 See [7.76]-[7.79].
221 Bryan v UK (1996) 21 EHRR 342.
222 See R (Alconbury) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295; Runa Begum v Tower Hamlets LBC [2003] UKHL 5, [2003] 2 AC 430; and Re Foster’s Application [2004] NI 248.
223 See R (Alconbury) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, 320-22, paras 51-3, Lord Slynn; and Re Foster’s Application [2004] NI 248, 261, para 47, Kerr J.
224 See further [7.75], considering R (Alconbury) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295 and Runa Begum v Tower Hamlets LBC [2003] UKHL 5, [2003] 2 AC 430.
225 Re Bothwell’s Application [2007] NIQB 25, paras 21ff; and Tsfayo v UK (2009) 48 EHRR 18.
226 Ali v Birmingham City Council [2010] UKSC 8, [2010] 2 AC 39, foreshadowed by R (A) v Croydon LBC [2009] UKSC 8, [2009] 1 WLR 2557. See further [7.73]-[7.79].