Lurking in the background of many judicial review claims is a complaint that a decision maker has made an error of fact.
Judicial review has generally been limited to challenging errors of law. But the courts have, in recent times, not been so bright line in the law-fact distinction as they once were.
It is now settled that the Court is able to review the application of facts to a particular legal test.
An early example was R v SSHD ex p Khawaja  1 WLR 625. The issue was whether Mr Khawaja was an “illegal immigrant” for the purposes of the Immigration Act 1971. Lord Bridge held that the Court was able to look at the evidence and decide whether it justifies the conclusion the Secretary of State reached. The Court was not simply limited to seeing whether there was "some evidence" for the Secretary of State’s conclusion.
An example of a more recent, and intrusive, review was R(A) v Croydon LBC  UKSC 8. In issue was whether A was a "child" for the purposes of section 20 of the Children Act 1989. It was held this was a precedent fact for the local authority power under section 20 duty and therefore the Court would decide whether the Claimant was, or was not, a "child". As many may recall this case led to a flurry of "age assessment" challenges.
Much more controversial is where the Courts are able to supervise the fact finding process. This is where the allegation is a decision maker, in making their decision, has made a pure error of fact.
The watershed case in this respect was E v SSHD  EWCA Civ 49. The Claimant was an Egyptian national, for whom the Immigration Appeals Tribunal refused asylum on the basis that he would not face persecution upon his return for being part of the "Muslim Brotherhood". The Claimant alleged the E that the Tribunal did not take into account a report that sympathisers of the Muslim Brotherhood were still at risk, which was available after the hearing but before the promulgation of the decision.
Carnwarth LJ (as he then was) decided in favour of the Claimant. Further he found an error of fact could constitute a separate ground of review. There were four requirements for such a review to succeed:
- The mistake must be on a existing fact (including mistake as to the availability of evidence on a particular matter);
- The fact must be uncontentious;
- The claimant must not be responsible for the mistake; and
- The mistake must have placed a material part in the tribunal’s reasoning.
This test has been applied in a range of cases since, both inside and outside the immigration context.
A good thing?
The issue of the Administrative Court’s dealing with errors of fact is that the Court does not have any fact finders. Evidence, almost invariably, is by witness statement. It is simply not a process suited to fact finding.
There remains a question as to the standard the Court will apply in looking at factual findings. For example, will it apply a correctness approach as taken in A, or will it allow a decision maker some scope for his or her own discretion where there is conflicting evidence? The answer is not clear and the cases go both ways.
What is clear is that the Administrative Court should be careful in how broadly it interprets E. Challenges must be limited to those which challenge the sufficiency of the evidence before a decision maker – anything further risks judicial review becoming an appeal of a factual decision. That is simply not the purview of judicial review.