The distinction between fact and law is often thorny, and sometimes in despair lawyers use the term ‘mixed fact and law’ for issues which in reality show up the distinction as a false one. This problematic distinction is the product of history. The hidden hand of history is everywhere in the law, creating untidiness, and sometimes illogicality. The division between law and equity is only the most obvious example, which affects the way in which decisions are taken in several areas of law. And yet the division has doubtful usefulness since the fusion of the jurisdiction of the courts of law and the courts of equity. The division can create uncertainty, and it makes the law impenetrable to the layman.

The way the distinction is drawn between law and fact is another of those historical hangovers which plagues English law. To give but one example, the question of what evidence should be admitted at trial is one where the trial judge has a lot of discretion, within certain limits, in both civil and criminal cases, and provided the judge acts within his discretion an appellate court will rarely interfere. And yet the question of whether any given piece of evidence is admissible is technically a question of law. This classification of a decision on admissibility as a decision of law is not very logical. The reason for it is of course that the distinction between law and fact which we still use is rooted in the tradition of the jury trial. A ‘question of law’ is code for ‘a question which it is the prerogative of the judge (or judges) to decide. A ‘question of fact’ is code for ‘a question which it is the prerogative of the jury to decide.’

There are various reasons why the established ways of distinguishing law from fact cannot be entirely jettisoned, one being that the jury trial is not quite obsolete in English civil procedure. But consequences for litigants of this blurry and sometimes artificial distinction can be dramatic. It makes perfect sense to an English lawyer to tell the litigant that the tribunal's possible error is not appeallable because it was on a 'question of fact'. This may make little sense to the layman. But the division between law and fact does shut out litigants from appealing in many cases where the point on which they want to take issue with the tribunal falls on the ‘wrong side’ of the law/fact divide.

The reasons for making it difficult for an appellate court to interfere with a jury decision are easy to justify. There is the practical reason that the jury’s thought process is not open to inspection (although historically juries were often asked how they arrived at their decision). And there is the overriding reason that the principle of allowing the parties to be tried by their peers would be meaningless if the judiciary could undo jury decisions which it did not like. Where the court, and not a jury, is the tribunal of fact, the reasons for refusing right of appeal where an issue is classified as one of fact are less compelling, although familiar enough to English lawyers, who are accustomed to the deep-rooted resistance of English courts to reviewing findings of fact.

At the same time, English lawyers have become accustomed to treating decisions on questions of fact in practice as precedents. Examples can easily be multiplied. Previous decisions about what constitutes negligent driving, or about the appropriate level of damages in PI cases, are treated like binding precedents. Intuitively this right. It would not be fair if similar cases were not decided consistently.

But now there is a formal basis for appealing a decision which ignores factual precedents. A recent immigration case decided that there is. R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 concerns the jurisdiction of the (now replaced) Immigration Appeals Tribunal (the IAT). The IAT derived its jurisdiction from statute, and that jurisdiction was restricted to hearing appeals on matters of law. The IAT deals with asylum cases. It seems likely that in asylum errors of fact are frequently made, with the gravest possible consequences for the asylum seeker. The reasons for this are that tribunals and courts are largely dependent on the Country Reports produced by the Home Office. Since the Home Office has both specific targets and the political will to refuse as many asylum seekers as possible, it is not surprising that these reports in some cases skew the evidence by errors and omissions to the disadvantage of the asylum seeker. The asylum seeker’s ability to adduce evidence is restricted by his limited means, and by the additional weight which courts are naturally inclined to accord to government-sponsored evidence. The injustice built into the practical reality of the situation facing the asylum seeker is compounded by the fact that initial administrative decision on his application is unlikely to be taken impartially. One former adjudicating officer suggested that officers who accede to a high proportion of applications are unlikely to keep their job for long. (A summary of these sources of unfairness can be found by listening to the report of Dominic Arkwright, broadcast on BBC Radio4’s programme ‘Broadcasting House’ on 9 October 2005 and available on the net for 7 days thereafter.) It is regrettable that the Country Guidance cases (referred to below) are regarded by many practitioners as themselves compromised in their fairness by the unfairness which the government has built into the system for determining asylum applications.

Given the difficulties which face asylum seekers, and the fact that asylum cases are often cases where it is appropriate for courts to take into account changing circumstances in the country to which the Government wishes to deport the applicant, it is not surprising that problems have arisen from the fact that IAT’s jurisdiction is restricted to dealing with questions of law. This is the issue which the Court of Appeal gives guidance on in R (Iran) v. Home Department.

It is not my intention to provide a detailed review of the case, which immigration practitioners will find elsewhere. My present purpose is to highlight the way in which the Court of Appeal held that failure to follow factual precedents amounted to an error of law.

So far as the asylum law context goes, the Court quotes and approves Ousley J in NM and Others (Lone women – Ashraf) Somalia CG [2005] UKIAT 00076, who refers to ‘Country Guidance’ (‘CG’) cases as ‘factual precedents’, failure to follow which will amount to an error of law, ‘unless there was good reason, explicitly stated, for not doing so.’ CG cases are cases which the IAT (and now its successor, the AIT) has identified as suitable as sources of guidance on making decisions of fact with respect to the dangers which might affect asylum seekers from particular countries. The AIT publishes a list of such cases.

However, the basis on which the Court of Appeal approved the concept of a 'factual precedent', albeit without discussion, is, in the words of the judgment (R (Iran) v Home Department paragraph 22): ‘The principle that like cases should be treated in a like manner is another way of describing what Lord Hoffmann described in Arthur J S Hall & Co v Simons [2002] 1 AC 615, 688H as "the fundamental principle of justice which requires that people should be treated equally and like cases treated alike."’

The point in Hall v Simons was, as many readers will recall, that it is not fair for barristers to enjoy immunity from suit for negligence which no other comparable profession enjoys. The Court of Appeal has made something of a leap in applying this argument from Hall v Simmons in order to approve the concept of a factual precedent. However, and notwithstanding the lack of broader argument on the point, it is, with respect, difficult to see any compelling objection to what the Court of Appeal has done. To decide a case in way which involves a factual inconsistency with other comparable cases in which a court (rather than a jury) has examined the evidence with care, is prima facie unfair. The Court of Appeal has here said explicitly that such inconsistency is an error of law.

Thus the Court of Appeal has, in effect, provided an additional tool to parties who wish to appeal on a point of law, when common sense would suggest that the point in issue is really better described as an issue of fact. The Court of Appeal is of course likely to be very cautious not to admit appeals on questions of fact by the back door. In one of the cases heard with R(Iran) v Home Department, the court expressly declined to treat an alleged error of fact as an error of law, on precisely this ground: that to do so would be to admit an appeal on a point of fact by the back door. On the other hand, the case may well assist any party who can point a clear failure of a first instance tribunal to follow a ‘factual precedent.’ In addition, because this ground of appeal would be based on an error of law, the lack of diligence test in Ladd v Marshall, which is a bar to admitting new evidence on appeal, should in principal not apply in a case where a party has, through lack of diligence, failed to place a 'factual precedent' before the first instance tribunal.

Looked at from a more theoretical perspective, the Court of Appeal has taken a step in the direction of undermining the principle that an appeal does not normally lie on a point of fact: a principle which is essential in a jury-trial system, but which (as civilian lawyers recognize) is far less appropriate in a procedural system where the tribunal of law is also itself the tribunal of fact.

Dr John Birchall - Professional English, Legal English, and Common Law Training