Control of Fact-Finding in Judicial Review

Introduction

Judicial review tests whether public bodies act lawfully. A frequent flashpoint is the factual basis for a decision: did the authority get the facts right, look at the right material, and evaluate it rationally? Control of fact-finding captures the rules courts use to correct factual mistakes that matter to legality, while still respecting the role of the original decision-maker.

This guide explains when courts will intervene, how they draw the line between fact and law, what level of scrutiny applies, how evidence is handled, and the role of procedural fairness.

What You'll Learn

• When factual errors justify court intervention, including no-evidence findings and material mistake of fact
• How to distinguish questions of fact, law, and mixed questions, and why it matters
• The standards of review: from Wednesbury unreasonableness to proportionality in rights cases
• When new evidence may be admitted and the duty of candour on public bodies
• How procedural fairness protects accurate fact-finding (notice, reasons, and a chance to respond)
• Practical steps for claimants and public authorities when fact-finding is in dispute

Core Concepts

Grounds for intervening in factual findings

Courts do not conduct a re-hearing. They intervene only on recognised grounds:

• No evidence: A finding with no evidential basis can be unlawful. A conclusion that could not be reached on the evidence may be quashed as irrational.
• Material mistake of fact: E v Secretary of State for the Home Department [2004] EWCA Civ 49 confirms a free-standing ground of review where a mistake of an established and uncontentious fact leads to unfairness. The usual elements are:
  • There was a mistake as to an existing fact, including the availability of evidence.
  • The fact was established and objectively verifiable.
  • The claimant was not responsible for the mistake (or had no fair chance to correct it).
  • The mistake was material to the decision and made it unfair.
• Failure to make proper inquiries: Secretary of State for Education v Tameside MBC [1977] AC 1014 shows that where a statute requires a decision based on certain conditions, the authority must make sufficient inquiries to inform itself before deciding.
• Taking irrelevant matters into account or ignoring relevant matters: Errors about what is factually relevant can taint the decision.
• Wednesbury unreasonableness: Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 frames intervention where a conclusion is so illogical that no sensible decision-maker, properly directing itself, could reach it.

These grounds often overlap. A flawed inquiry may lead to a mistake of fact; an unsupported finding may be both a no-evidence error and irrational.

Fact vs law: who decides what?

The line between fact and law affects the court’s role:

• Primary facts: Findings from evidence (e.g., who said what, what happened) are usually for the decision-maker, unless one of the grounds above is made out.
• Law and legal standards: Interpreting statutory terms is for the court. Classifying agreed or proved facts against a legal standard can also be a matter of law. In Edwards v Bairstow [1956] AC 14, the House of Lords treated the question whether a transaction amounted to trading as one the court could correct where the tribunal’s conclusion could not reasonably stand.
• Mixed questions: Some statutory terms combine fact and evaluation (e.g., “fit and proper,” “proportionate”). Courts accept that evaluative judgments warrant deference, but will intervene if there is an error of legal approach, a material mistake of fact, or a conclusion that no reasonable decision-maker could reach.

Practical point: Identify the statutory language in issue. If the dispute is about the meaning of the term, that is for the court. If it is about what happened, focus on the recognised factual-error grounds.

Standards of review and intensity

The level of scrutiny varies with context:

• Wednesbury: The baseline for most administrative decisions remains rationality review. The court checks for legality, proper purpose, relevance, and whether any conclusion was irrational, without substituting its own view.

• Heightened scrutiny: Where fundamental rights or high-stakes interests are in play, the scrutiny tightens. R v Secretary of State for the Home Department, ex p Bugdaycay [1987] AC 514 spoke of especially careful examination in life-and-death asylum claims.

• Proportionality: Where the European Convention on Human Rights or retained EU law applies, courts use structured proportionality. Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 set out four questions:

  1. Is the objective sufficiently important?
  2. Is the measure rationally connected to the objective?
  3. Could a less intrusive measure have been used?
  4. Does the measure strike a fair balance?

  Proportionality can require closer engagement with the factual record, including whether the evidence supports the measure and whether the balance is justified.

• Deference and margin of judgment: Technical, scientific, and polycentric decisions may attract a wider margin. That does not insulate errors of law or material mistakes of fact.

Evidence on judicial review

Judicial review proceeds on written evidence, not oral testimony, and does not ordinarily admit extensive new material. That said:

• Duty of candour: Public bodies must provide a full and accurate explanation of the decision and disclose key documents. This duty supports fair testing of facts without turning judicial review into a trial.
• New evidence: R (Kennedy) v Charity Commission [2014] UKSC 20 confirms that additional evidence may be admitted where necessary and relevant to specific issues, especially in technical contexts. The court will keep it focused and proportionate to the issues.
• Records and reasons: The decision-maker’s record, and reasons where required, are central. Where reasons are absent, fairness may imply a duty to give them, particularly if reasons are needed to challenge a factual premise effectively.

Procedural fairness and fact-finding

Accurate decisions depend on fair process:

• Right to be heard: R v Secretary of State for the Home Department, ex p Doody [1994] 1 AC 531 establishes that fairness usually requires an affected person to know the case they must meet and to have a fair chance to comment on adverse material.
• Adequate inquiry: Tameside shows that a decision can be unlawful if the authority fails to inform itself properly before acting.
• Opportunity to correct errors: Under E v SSHD, fairness is central to correcting material mistakes of fact. Where a person has not had a fair chance to address a factual assertion, a challenge is more likely to succeed.

Key Examples or Case Studies

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

• Context: Licence condition barring children under 15 from cinemas on Sundays.
• Key point: A decision is unlawful if so unreasonable that no sensible authority could ever have imposed it.
• Application: Use Wednesbury where a factual conclusion is plainly unsupported by the evidence and logic.

Edwards v Bairstow [1956] AC 14

• Context: Whether a one-off transaction was “trading” for tax purposes.
• Key point: Applying a legal standard to facts can be a question of law; courts can correct conclusions that no reasonable tribunal could reach.
• Application: Distinguish primary fact-finding from classification against a legal test.

E v Secretary of State for the Home Department [2004] EWCA Civ 49

• Context: Asylum decision based on a misunderstanding of country material.
• Key point: A material, established mistake of fact causing unfairness is a stand-alone ground for judicial review.
• Application: Frame factual challenges against E v SSHD’s four elements and show materiality.

Secretary of State for Education v Tameside MBC [1977] AC 1014

• Context: Intervention in local education policy based on alleged standards risks.
• Key point: Authorities must take reasonable steps to inform themselves before deciding; misunderstanding or inadequate inquiry can invalidate a decision.
• Application: Argue failure to make proper inquiries where the statute implies a duty to gather and assess relevant facts.

Bank Mellat v HM Treasury (No 2) [2013] UKSC 39

• Context: Financial restrictions on an Iranian bank.
• Key point: Structured proportionality requires the court to assess the factual basis for each stage of the test.
• Application: In rights cases, expect closer testing of evidence and the claimed necessity of the measure.

R (Kennedy) v Charity Commission [2014] UKSC 20

• Context: Access to information from a regulator.
• Key point: The court may admit focused new evidence in judicial review where needed to resolve a specific issue.
• Application: Keep additional evidence targeted; rely on the duty of candour for primary disclosure.

R v Secretary of State for the Home Department, ex p Doody [1994] 1 AC 531

• Context: Parole tariffs for life prisoners.
• Key point: Fairness can require reasons and a chance to make representations so that any adverse facts can be challenged.
• Application: Use procedural fairness where a person was not told or could not address the factual basis of a decision.

Practical Applications

• For claimants

  • Pin down the error: Is it no evidence, a material mistake of fact (E), a failure to inquire (Tameside), or irrationality (Wednesbury)?
  • Prove materiality: Show a real chance the decision would have been different without the error.
  • Evidence pack: Include key documents, witness statements, and objective sources (e.g., country reports, technical data). Avoid turning the claim into a merits appeal.
  • Use pre-action letters to request disclosure under the duty of candour and to identify adverse material you need to see.
  • Choose the right standard: If rights are engaged, run proportionality and explain how the factual record fails the Bank Mellat steps.

• For public bodies

  • Record-keeping: Keep a clear record of the facts considered, sources used, and why they were reliable.
  • Inquiry: Make timely and adequate inquiries where the statute or context requires it; document them.
  • Reasons: Provide reasons that show how facts informed the result. If relying on new or adverse material, give the person a fair chance to comment unless a lawful exception applies.
  • Candour: On challenge, disclose core documents and explain the decision accurately and fully.
  • Review: If a material mistake of fact is identified, consider revisiting the decision promptly.

• For advisers and students

  • Structure the argument: Identify the ground, link it to authority, then show how the evidence meets the test.
  • Distinguish primary facts from legal classification. Use Edwards v Bairstow and E v SSHD to organise the analysis.
  • Remedies: Where a factual error is proved, the usual remedy is quashing with remission. Consider whether a declaration or mandatory order is needed.

Summary Checklist

• Identify whether the issue concerns primary facts, legal classification, or both
• Choose the appropriate ground: no evidence, material error of fact (E), failure to inquire (Tameside), relevant/irrelevant considerations, or Wednesbury
• If rights are engaged, apply proportionality and test the factual basis under Bank Mellat
• Use procedural fairness: was the person told the adverse facts and given a fair chance to respond?
• Keep evidence focused: rely on the duty of candour; seek targeted new evidence only where necessary
• Show materiality: explain how the factual error affected the outcome
• Seek suitable relief: quashing and remission are common; consider declarations where helpful

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