Evidential inferences
Types of evidential inference
11.29Inferences may be conclusive or persuasive.
11.30A conclusive inference can only be based on certainty. It applies in circumstances where if A and B are both true, then C must also be true. Given the nature of legal proceedings and the standard of proof, it is seldom possible to be confident in a legal setting that certain facts are true. Without sound premises, this method of reasoning is not possible. That leaves persuasion.
11.31A persuasive inference is based on probability. In the legal context, it begins with a search for further findings of fact that are consistent and coherent with the primary facts. For example: A goes for a walk in the park every Tuesday evening. Last Tuesday, A left at the normal time wearing walking shoes and took the bus that goes past the park. It is possible to infer that A did go to the park, although that is not certain.
11.32By its nature, this approach can generate many possible and inconsistent inferences. The tribunal must decide whether to draw any inferences and, if so, to select from those available. The choice has to be made in two contexts: (i) the findings relevant to the issue in question; and (ii) the burden of proof applicable to that issue.
11.33Within that framework, a number of factors may be relevant. Their significance will depend on the circumstances of the case.
11.34How much confidence does the tribunal have in the soundness of its findings of primary facts? The greater that confidence, the sounder the foundation for drawing inferences. The less that confidence, the more cautious it should be in drawing any further conclusions.
11.35How well does a particular inference account for those primary findings? The better that account, the sounder the case for that inference.
11.36How plausible is a particular inference? An inference may account for the primary findings, but it may not be plausible in the context of a particular case. This will be assessed by reference to the tribunal’s understanding and experience of life, including experience of similar cases.
11.37Does the inference identify a cause for the primary facts? This will not always be relevant. In some cases, it may be. For example: it may be possible to infer that the behaviour exhibited by a child is caused by the child having a particular medical condition.
11.38The choice may be reduced, and the ultimate selection of an inference therefore assisted, by the nature of the process of inference adopted by the tribunal.
Closed, open, comparative and own initiative processes
11.39The process of inference is closed if the only issue is whether a particular inference can be drawn. For example: given the claimant’s knowledge of the benefit system and disposal of capital, can it be inferred that this was done in order to secure entitlement to benefit?
11.40The process is open if the issue is which of a number of permissible inferences should be drawn. For example: given the party’s proven life-style, what level of income can be inferred?
11.41In practice, both closed and open processes are likely to have a comparative element. The parties will probably argue for different inferences, presenting the tribunal with a choice and a chance to compare the arguments for the competing inferences. Is the disposal of capital better explained by a concern to secure entitlement to benefit or a desire to repay debts? Is the party’s life-style more likely to be supported from income or from credit?
11.42The tribunal will not necessarily be bound to accept any of the inferences suggested by the parties. It may of its own initiative identify an inference that has not been suggested by either party. In some cases, it may have no interest in, or basis for, doing this. Take the example of the disposal of capital before claiming benefit. The Secretary of State may argue that it was motivated by the desire to secure benefit while the claimant may argue that it was justified in order to pay off existing debts. It is unlikely that the tribunal will have any reason to substitute an inference favourable to the claimant, but different from the case actually put by the claimant. In other cases, a different inference may be appropriate. Take the inferring of income from life-style. The evidence will probably justify a range of inferences. Each parent will have an interest in arguing for a figure at either end of the range, whereas the tribunal may consider that a more realistic figure is somewhere nearer the centre.
11.43The process may involve a comparative element even if it is not presented as such to the tribunal. The tribunal may nonetheless find it helpful to consider a range of possibilities when deciding which inference to draw. This may form part of a structured consideration as part of an objective, open-minded decision-making process.
1See chapter 14.The efficient use of inferences
11.44The Court of Appeal in
Crewe Services and Investment Corporation v Silk2(2000) 79 P&CR 500. encouraged county court judges to rely on common sense inferences rather than require expensive expert evidence. Robert Walker LJ referred to:
… the practicalities of the disposal of business in the County Court. County Court judges constantly have to deal with cases that are inadequately prepared and presented, either as to the facts or as to the law (or both), and they must not be discouraged from doing their best to reach a fair and sensible result on inadequate materials. Moreover there is a strong public interest in encouraging litigants not to incur the expense of a proliferation of expert witnesses (in this case, actuaries and valuers have been mentioned) unless the additional expense of time and money can be justified.
3(2000) 79 P&CR 500 at 509.He then went on to explain how the county court judge could have obtained relevant evidence from witnesses already called, without the need for expert witnesses, and drawn sensible conclusions as to valuation from general experience. This reasoning is equally applicable to tribunals.