14.148In Scott v Scott,1[1913] AC 417. Lord Shaw described the ideal of judicial decision-making:

14.152This evolving process during the hearing may appear to determine the case. For example: evidence may be considered unreliable, which once rejected makes the outcome of the proceedings inevitable. But even in this case, it is worth pausing before deciding in order to consider the issue in a structured way that is best undertaken, and perhaps only possible, in the calm and quiet after the hearing.

14.153There is a danger of forming a provisional view and then evaluating later evidence in conformity with that view. It is sometimes suggested that any consideration of the case should be suspended while evidence is being given and argument presented. But this is neither possible nor desirable. It is not possible, because the mind is inevitably assessing evidence and argument, even if that process is not conscious. And even if it were possible, it would not be desirable, because it would prevent relevant questions being asked of witnesses and pertinent points being raised in argument.

14.155One approach is to focus with precision on the factors relevant to the assessment of the evidence and the application of the law to the facts found, avoiding generality of reasoning. Take as an example the assessment of evidence of a person’s disability. General comments such as ‘I wasn’t really persuaded by his evidence’ or ‘Her GP did not take matters any further’ may be correct, but they are capable of concealing preconceptions or prejudices. Focusing on relevant factors such as whether clinical findings or dosage of medication are consistent with the asserted disability limits the scope for other influences to intrude into the decision-making.

14.156Another approach is to adopt a structured reconsideration at the end of the hearing. Research has shown that this is especially effective if it involves constructing the strongest arguments that can be made for and against a particular point of view.5Scott Plous, The Psychology of Judgment and Decision Making, McGraw-Hill, 1993, chapter 19, ‘Overconfidence’, p228. This process is improved if it is informed by an understanding of how beliefs are formed.6For simple and complex models of how beliefs are formed, see of The Power of Belief, Oxford, 2006, chapter 1, ‘A cognitive neuroscience of belief’, especially pp12–17.

14.157A further approach is to emphasise the logical process involved in the decision-making. Research has shown that this can help to overcome inbuilt biases.7J A Fugelsang and K N Dunbar, Law and the Brain, chapter 8, ‘A cognitive neuroscience framework for understanding causal reasoning and the law’, p163. As Christine Boyle wrote, citing Canadian authorities in support of the advice:

14.159If the tribunal consists of a single judge, there can be a seamless transition from the continuing assessment and evaluation that took place during the hearing. But even here a conscious and systematic consideration of the issues helps to ensure that all the relevant issues are identified and thought through. This can be helped by the use of a checklist of issues to be considered and by making a structured note of the reasons, unless they are being written immediately.

14.160If the tribunal consists of more than one member, there will still be a continuity from the ongoing process during the hearing. But with this difference: the thoughts of the individual members during the hearing must be pooled for decision-making. A structured approach must be taken to ensure that no issues of fact or law are overlooked. Usually, that approach will be led by the presiding judge. The approach must also be collegiate to ensure that the decision reached is that of the tribunal as a whole.

14.162The first step is to hear the evidence.

14.163The second step is to identify the law that may be relevant. This will depend on the evidence that has been given. That evidence will determine the law that is potentially relevant. This law must be identified before or during the hearing in order to ensure that all the relevant evidence is obtained. When the tribunal has made its findings of fact, some of this potentially relevant law may become irrelevant.

14.164The third step is to resolve any issues of interpretation in the law. The relevant law, once identified and interpreted, will determine the facts that have to be found.

14.165The fourth step is to assess the evidence.

14.166Once this has been done, the fifth step is to make the findings of fact and, if necessary, to draw inferences from them.9See chapter 11.

14.167When the facts have been found, the sixth step is to apply the law to the facts found. This will determine the outcome of the case.

14.168The seventh step is to record the reasons that have been articulated during the decision-making. If the reasons are to be written later, this may take the form of notes for later reference.

14.169However, in practice, there is an element of circularity. For example: it is necessary to identify the relevant law, but that depends on the facts, and the facts cannot be found unless they are relevant, but they can only be identified from the relevant law. So, the steps cannot be tackled in a rigid sequence; it may be necessary to move back and forth between them.