Facts and inferencessee also Inferences:primary factssee also Inferences:primary factssee also Inferences:primary factssee also Inferences:primary factssee also Inferences:perception, ofsee also Inferencessee also Inferences:inference upon inference
Primary facts and inferences
11.22The primary facts are the findings of fact that the tribunal makes directly from the evidence.
11.23A tribunal may have to make findings of fact on matters that are not directly covered by the evidence.
1A person’s mental state can rarely be found by direct evidence: McGreevy v Director of Public Prosecutions [1973] 1 WLR 276 at 285. It does this by drawing inferences. Inferences are also called secondary facts. Drawing an inference is a process of reasoning that reaches a conclusion of fact from another fact or from a party’s conduct in relation to the proceedings. Anything else is mere speculation.
2Ryder J in A Local Authority v A (No 1) [2011] 2 FLR 137 at [18]. The conclusion reached may be a fact in issue or an intermediate fact on which further reasoning can be based. Inference is used both to describe the process of finding the fact and the fact so found.
11.24In this book, an inference drawn from another fact is called an evidential inference and an inference drawn from a party’s conduct in relation to the proceedings is called a forensic inference. They are dealt with at paragraphs 11.29 onwards below.
11.25Denning LJ explained the difference between primary facts and inferences in
British Launderers’ Research Association v Central Middlesex Assessment Committee and Hendon Rating Authority:
3[1949] 1 KB 462.Primary facts are facts which are observed by witnesses and proved by oral testimony, or facts proved by the production of a thing itself, such as an original document … The conclusions from primary facts are, however, inferences deduced by a process of reasoning from them.
4[1949] 1 KB 462 at 471.Compound fact
11.26‘Compound fact’ is an expression that was used by Jessel MR in
Erichsen v Last.5(1881) 8 QBD 414 at 416. It is one that conveys the overall effect of a series of component facts, each of which has to be analysed in the context of all the other facts.
6See chapter 4.Inferences of perception and evaluation of facts
11.27The courts have distinguished between inferences of perception and evaluation.
7Viscount Simonds in Benmax v Austin Motor Co Ltd [1955] AC 370 at 373. Perception is concerned with finding facts. Evaluation is concerned with whether the facts found satisfy a legal test or standard. These are also known as issues of mixed law and fact or of fact and degree. In this book, references to inferences are generally to inferences of perception. Inferences of evaluation are treated as one form of judgment.
Inference upon inference
11.28Is it possible to draw an inference wholly or partly from another inference? The comments of Lord Hodson in
Rubber Investment Ltd v Daily Telegraph Ltd8[1964] AC 234. suggest that it is not. The case concerned an alleged libel contained in a newspaper article that the affairs of a company were being investigated by the police. Lord Hodson said:
Suspicion, no doubt, can be inferred from the fact of the inquiry being held if such was the case, but to take the further step and infer guilt is, in my view, wholly unreasonable. This is to draw an inference from an inference and to take two substantial steps at the same time.
9[1964] AC 234 at 274.This is an isolated comment and seems to go too far. It is right to bear in mind that a further inference is being based wholly or partly on a fact that is itself established by inference. It is right to be more cautious the further the fact-finding departs from the direct evidence. But in principle there should be no objection to a rational process of reasoning that moves from one inference to another.