![handle is hein.journals/judire23 and id is 1 raw text is:
JUDICIAL REVIEW, 2018
VOL. 23, NO. 1, 1-10 a
https://doi.org/10.1080/10854681.2018.1452497 Taylor & Francis Group
Error of Fact Revisited: Waiting for the Anisminic Moment
Christopher Forsyth
Emeritus Sir David Williams Professor of Public Law, University of Cambridge
Introduction: the injustice caused by errors of fact
1. It is undeniable that errors of fact made by administrative decision-makers may lead to
injustice to individuals or to public authorities. An individual may be denied a benefit to
which they are entitled or more commonly the fairness of a decision-making process
may be undermined when a mistake of fact is made (for instance, in that a relevant con-
sideration may be found not to be established and so not taken into account by the
decision-maker (as it should be)).
2. It is worth noting that the injustice may be caused to public authorities as much as to
individuals. An error of fact may, for instance, cause a public authority to bear some
burden that it is not, in law, required to bear. Where the error is made by the public
authority itself it may be right not to allow the authority to rely upon its own error;
but where, as is frequently the case, the error is made by an independent tribunal
rather than by the administrative body in question, the injustice to the public authority
seems plain. Thus the relevant public authorities as well as the individuals disputing a
particular administrative decision share an interest in avoiding errors of fact.
3. We may demonstrate the injustice of leaving errors of fact uncorrected by consideration
of the well known case of R (Haile) v Immigration Appeal Tribunal [2001] EWCA Civ 663,
[2002] Imm AR 170. Here the immigration adjudicator thought that the appellant, an
asylum seeker, claimed to be linked to a group called the EPRF (Ethiopian Peoples Revo-
lutionary Front),2 when in fact he had claimed to be linked to the completely different
EPRP(Ethiopian Peoples Revolutionary Party). The error was one of a number of factors
that led the adjudicator to doubt the appellant's credibility (and consequently to
reject the application for asylum). The Court of Appeal observed that the consequences
of this factual error must inevitably leave a sense of deep injustice in the appellant and it
cannot confidently be said to have made no ultimate difference to the result (para. 25).
'1 have previously written with others on the subject of error of fact. See e.g. William Wade and Christopher Forsyth, Adminis-
trative Law (11th edn, Oxford University Press, 2014), pp. 230-232, Christopher Forsyth and Emma Dring, The Final Frontier:
The Emergence of Material Error of Fact as a Ground for Judicial Review, in Christopher Forsyth, Mark Elliott, Swati Jhaveri,
Anne Scully-Hill, and Michael Ramsden (eds), Effective Judicial Review: A Cornerstone of Good Governance (Oxford University
Press, 2010). In writing this account I have naturally drawn on the ideas as expressed in the earlier writing. I have also had
sight of Hanna Wilberg's helpful unpublished manuscript Mistakes about Mistake of Fact: the New Zealand Story.
21n fact a non-existent group.
0 2018 Informa UK Limited, trading as Taylor & Francis Group](ViewImageLocal?handle=hein.journals/judire23&div=1&collection=&method=preview&ext=.png&size=3)
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