Nature of a fact
11.1The nature of a fact is not just of theoretical interest. It assists in both the gathering of evidence and its assessment by providing a framework, albeit only partial, within which the reliability of evidence can be tested.
1For further elements of a framework for testing evidence see paras 11.69 onwards.The purpose of an inquiry into the facts
11.2Judges are under a duty to find the facts on any contested issue.
2Viscount Simonds in Benmax v Austin Motor Co Ltd [1955] AC 370 at 373.11.3One view of the aim of an inquiry into the facts is that it is to discover the true facts. Judges sometimes make remarks that appear to support this. In
Jones v National Coal Board,
3[1957] 2 QB 55. the Court of Appeal said of the judge’s duty: ‘His object, above all, is to find out the truth …’
4[1957] 2 QB 55 at 63. See also: Lord Dunedin in Thompson v The King [1918] AC 221 at 226. And twice in
O’Brien v Chief Constable of South Wales Police5[2005] 2 AC 534 at [4] and [6]. Lord Bingham referred to the ‘right answer’ on the facts. But such statements beg the question of what is meant by ‘truth’ and ‘right’.
11.4There is a limit to which the true facts can be ascertained. As Lord Brandon recognised in
Barder v Caluori,
6[1988] AC 20. ‘justice requires cases to be decided,
as far as practicable, on the true facts relating to them’.
7[1988] AC 20 at 41 emphasis added. And what is practicable is limited by the evidence available, as Lord Denning MR recognised in
Harmony Shipping Co SA v Saudi Europe Line Ltd.
8[1979] 1 WLR 1380 at 1385. See also: Lord Wilberforce in Air Canada v Secretary of State for Trade [1983] 2 AC 394 at 438. And by who bears the burden of proof, as Lord Denning recognised in
Air Canada v Secretary of State for Trade:
9[1983] 2 AC 394. ‘The due administration of justice does not always depend on eliciting the truth. It often depends on the burden of proof’.
10[1983] 2 AC 394 at 411.11.5In practice, the best that can be achieved is to come as close to the true facts as possible. The extent to which this can be achieved is severely limited by a number of factors. The result of the combination of these factors is that the facts found by the tribunal may be significantly different from the ‘true facts’ of the case.
11The way in which we form beliefs is important to an understanding of evidence and the factors that can influence it. For simple and complex models of how beliefs are formed, see ‘A cognitive neuroscience of belief’ in Halligan and Aylward, The Power of Belief, Oxford, 2006, especially pp12–17.11.6These factors are considered below. They can be interpreted as leading to a different analysis of the aim of an inquiry into the facts. On this analysis, the discovery of the true facts is at best an aspiration; the possibility of the facts found coinciding with the true facts is only a matter of chance. Viewed in this way, a fact is no more than the outcome of applying a process of reasoning to the evidence.
Availability of evidence
11.7Tribunals have to decide cases on the evidence available. This may be more limited that the evidence that exists or could be obtained. There are many reasons why evidence may not be available. A party may withhold it, not know that it exists or how it can be obtained, not have access to it or not be able to afford the cost of obtaining it.
Value of evidence
11.8Even if evidence is available, its value as indicating the ‘true’ facts can be limited in a number of ways. The discussion assumes that all the witnesses are trying to give honest accounts of what happened.
Perception and interpretation
11.9Perception includes, but is not limited to, observation. It covers the full range of senses. It also conveys the element of subjectivity in the exercise in contrast to the objectivity that can be suggested by ‘observation’.
11.10The event
12This is a deliberately vague word. According to the issue, it may be something that has happened, or something that was seen or heard, or the value of something, or a state of affairs, such as a person’s health. was experienced by those involved and witnessed by others. They each have a perception of what happened. This perception may be physically partial. For example: a witness may not have been well placed to see all that occurred. And the perception, whether physically partial or complete, may be affected by the intellectual, cultural, mental or emotional characteristics of the witness. For example: the witness may be opposed to any violence or dislike one of those involved.
11.11A witness’s perception and interpretation of an event may be distinct processes. For example: the witness may see the employee approaching the supervisor at a particular speed. A witness who is always cautious when moving around the work place may interpret this as the employee rushing towards the supervisor, whereas a less cautious witness may interpret it as the employee approaching the supervisor at normal speed. Alternatively, interpretation and perception may be inextricably connected. For example: a witness affected by colour prejudice may see a black employee strike a white supervisor, whereas another witness may see only a black employee trying to prevent a white supervisor from slipping.
11.12The witness’s evidence will be affected by interpretation and perception. The tribunal has to attempt to penetrate through to the real event.
Recollection
11.13The tribunal will only hear of the event to the extent that the witness can recall it. This will be limited by the extent and accuracy of the witness’s recollection. A further process of selection and interpretation may occur at this stage. The result may be that some elements of what the witness saw are lost while other parts of it are embellished.
11.14The nature of memory is explained in the key points from the report of the British Psychological Society Research Board on Guidelines on Memory and the Law (2008), which are set out below at paragraph 11.115.
Communication
11.15Communication involves at least two parties: the person who reports and the person who hears. There is scope for inaccuracy on the part of both.
11.16The witness’s recollection must be expressed. The accuracy with which the event as recalled by the witness is correctly reported depends in part on the witness’s command of language. This is partly a matter of the range of vocabulary, partly a matter of choice of vocabulary, and partly a matter of the fluency with which it can be deployed.
11.17However clearly a witness may give evidence, it is possible for the tribunal to misinterpret it. It may do so for a variety of reasons. The evidence as given may depend on information that is not known to the tribunal. Or its meaning may be affected by the terms of the questions asked to elicit it, in ways which are not known to the tribunal. Or the tribunal may have preconceptions about the case which affect its interpretation. And so on.
Admissibility
11.18Before recollection is accepted as evidence, it must be admissible. The extent to which the rules of admissibility impose a significant limitation on the evidence that a tribunal may consider depends on whether the strict rules of evidence apply.
13See chapter 10. Excluding evidence will limit the evidence available to the tribunal. This may deprive it of relevant material, thereby hampering its ability to identify the true facts. But it may also assist in finding the true facts by excluding evidence that is unreliable or would otherwise hamper the fact-finding.
Analysing the evidence
11.19The tribunal has to assess the evidence. The criteria used may allocate greater probative worth to evidence that is not as accurate as other evidence. For example: a tribunal may find that a contemporaneous account is more likely to be accurate than a witness’s later recollection, although the reverse is in fact the case.
Evaluating the evidence
11.20When the probative worth of the evidence has been analysed, the tribunal has to evaluate it by reference to the standard of proof.
14See chapter 14. In doing this, it may be allowed or required to apply presumptions. They may be based on probability, but do not guarantee accuracy.
What is a fact?
11.21For the purposes of the tribunal’s decision, a fact is what is found by a tribunal. It may or may not be the ‘true’ fact. It is the end result of the filtering, and potentially distorting, processes of observation, perception, interpretation, recollection, communication, assessment and evaluation.