It’s time we let you in on a secret. There is a major flaw in our justice system. Appeal courts struggle with it but only using delicate language designed to shroud the problem. Virtually all lawyers know about it but nobody has managed to come up with an acceptable solution. And we’re not supposed to talk about it.
We need a justice system and our works reasonably well. So to protect the confidence in our justice system, we’re not supposed to tell you about the problem. But we believe that people should understand the good and bad aspects of the system. So here it goes:
Courts and tribunals at first instance decide the facts in a case. Courts hearing an appeal of the decision of the lower court or tribunal defer to the findings of fact of the court of first instance. In other words, in the first hearing evidence is called. People testify, and present their case. The judge or tribunal makes findings of fact, for example “I disbelieve Mr. Jones and I accept the evidence of Madame X.”
When the matter goes to the appeal court, they defer to the findings of fact made at the court of first instance. So from our example, the appellate court will accept that Mr. Jones is not truthful and Madame X gave honest evidence. If the appeal is to succeed, then the court must find that the judge made a mistake; not in the findings of fact, but in the application of the law.
So, if the judge clearly misunderstood the law of self defence, that can be considered on appeal. But if the judge disbelieved Mr. Jones, that cannot be considered on appeal.
There is an important reason that we’re telling you about this. Any judge at a lower court can, if they are inclined to any particular outcome, craft the findings of fact to fulfill any particular outcome. And this will usually stymie the court conducting the appeal.
So, for example, if a person is alleged to refuse to blow into a breathalyzer, and they testify that they tried their best to blow, a court could, if they are inclined to convict, simply reject the person’s evidence.
If you read between the lines of the Spencer decision, you can see the problem in action.
Judges or tribunals can uphold almost any decision by making findings of fact that support their ultimate conclusion.
Thankfully, it is not something that we often see in court. But the Government is moving everything away from the courts and handing adjudication to tribunals in Government offices. And the Government has an interest in the outcome of the decisions.