JONES V FIRST TIER TRIBUNAL AND CRIMINAL INJURIES COMPENSATION AUTHORITY [2013] UKSC 19
FACTS:-
The Applicant was a lorry driver who suffered a catastrophic accident in January 2005, after a man ran into the middle of the road, causing another vehicle to swerve into him. An inquest found that the man’s intention was to commit suicide. In May 2007, the Applicant made an application to the CICA through his mother under the 2001 Scheme. His application was refused because the CICA took the view that the Applicant was not the victim of a criminal injury for the purposes of the Scheme. Although the man who caused the accident intended to commit suicide, he did not deliberately intend any harm to the users of the road. Mr Jones’ counsel submitted that the suicide had committed an offence under Section 22A of the Road Traffic Act 1988 (interfering with a motor vehicle) and Section 20 of the Offences against the Person Act 1861, grievous bodily harm. Mr Jones appealed to the First Tier Tribunal but they affirmed the Authority’s decision and said that suicide per se was not a crime. Mr Jones appealed against that decision to the Court of Appeal who allowed his appeal. It remitted the matter to a differently constituted First-tier Tribunal to reconsider the issue of recklessness in the light of the reasons given in the court's judgment. The CICA then petitioned the UK Supreme Court.
JUDGMENT:-
Lord Hope went over the facts of the case. He said that the CICA Scheme was made under section 1 of the Criminal Injuries Compensation Act 1995. That Act was enacted to establish a scheme for compensation for criminal injuries in place of the non-statutory system which had been in existence since 1964 following the publication of the White Paper "Compensation for Victims of Crimes of Violence" (1964) (Cmnd 2323). In para 13 of the White Paper it was acknowledged that personal injury might arise from a great variety of offences and it refrained from specifying a comprehensive list of crimes whose victims might apply for compensation. The 1964 Scheme did not set out a list of that kind either. But revisions to the 1964 Scheme in 1969 introduced into it the words "crime of violence" for the first time. As amended, the 1964 Scheme provided for applications for compensation in circumstances where the applicant had sustained "personal injury directly attributable to a crime of violence (including arson and poisoning)". The same wording was used when a new scheme was introduced in 1979. That scheme was replaced by the Criminal Injuries Compensation Scheme which was introduced by the CICA on 27 November 2012.
Lord Hope then considered section 20 of the 1861 Act, which said:-
"Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanour, and being convicted thereof shall be liable … to be kept in penal servitude."
In R v Mowatt [1968] 1 QB 421, 425 Diplock LJ observed that the expression "unlawfully and maliciously" was a fashionable phrase of the Parliamentary draftsman in 1861. It is plain that it was not to be taken to have been used here in the old, rather vague, sense of wickedness. A more precise appreciation as to the test it lay down was required. In R v Cunningham [1957] 2 QB 396 the Court of Criminal Appeal approved of the principle which had been propounded by Professor C S Kenny in the first edition of his Outlines of Criminal Law (1902) and had been repeated in the 16th edition (1952), p 186, that any statutory definition of a crime must be taken to require either (1) an actual intention to do the particular kind of harm that in fact was done, or (2) recklessness as to whether such harm should occur or not (in other words, that the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). His description of the principle was approved and applied by the House of Lords in R v Savage; DPP v Parmenter [1992] 1 AC 699: see Lord Ackner at p 752. Mustill LJ said in the Court of Appeal in that case at p 706 that the judgment in R v Mowatt laid down two propositions, one positive and one negative:
"The positive proposition was that to found a conviction under section 20 it must be proved that the defendant actually foresaw that physical harm to some other person would be the consequence of his act. This is subject to the negative qualification, that the defendant need not actually have foreseen that the harm would be as grave as that which in the event occurred."
It was pointed out that the words "should have foreseen" in Mowatt were intended to bear the same meaning as "did foresee" or simply "foresaw".
Lord Hope then went over the various attempts by the court to define a “crime of violence”. He referred to the following cases:-
In August, para 21, Buxton LJ said that he accepted counsel's submission that the issue for the panel of whether a crime of violence had taken place was a jury question. Lord Hope said that it would be more accurate to say that it was for the tribunal which decided the case to consider whether the words "a crime of violence" did or did not apply to the facts which had been proved. Built into that phrase, there were two questions that the tribunal had to consider.
It was primarily for the tribunals, not the appellate courts, to develop a consistent approach to these issues, bearing in mind that they are peculiarly well fitted to determine them. A pragmatic approach should be taken to the dividing line between law and fact, so that the expertise of tribunals at the first tier and that of the Upper Tribunal can be used to best effect. An appeal court should not venture too readily into this area by classifying issues as issues of law which were really best left for determination by the specialist appellate tribunals.
The question whether a criminal offence had been committed was a question for the tribunal, having informed itself as to what the law required for proof of that offence, to determine as a matter of fact. The question whether the nature of the criminal act amounted to a crime of violence might or might not raise an issue of fact for the tribunal to determine. This would depend on what the law requires for proof of the offence. For example, some of the common law crimes known to the law of Scotland were quite loosely defined. The range of acts that fell within the broad definition might vary quite widely, so the question whether there was a crime of violence would have to be determined by looking at the nature of what was done. But in this case the words of the statute admitted of only one answer. They spoke for themselves.
To wound or inflict any grievous bodily harm on another person unlawfully or recklessly, foreseeing that physical harm to some other person would be the consequence of his act, was a crime in terms of section 20 of the 1861 Act. It was also a violent act. So too was the unlawful or reckless application of physical force of any kind to the person, directly or indirectly, so that they suffered injury – frightening or threatening someone so that they ran into the road and were hit by a car. In Reg v Martin (1881) 8 QBD 54, where the accused by unlawful conduct caused panic in the course of which a number of people were injured. The crime that section 20 defined would always amount to a crime of violence for the purposes of the scheme for compensation for criminal injury.
Lord Hope considered the decision of the First-tier Tribunal. The tribunal accepted the evidence of PC Sexton that probably the primary aim of the man who caused the accident, a Mr Hughes, was to be certain of causing his own death and that in his experience it was very unusual for a suicide in this manner to cause such extensive personal injuries and damage to vehicles. Mr Hughes may have been careless of the injuries that may have been caused to third parties by his actions. However the tribunal were not satisfied that the facts of the case demonstrated that Mr Hughes intended to cause harm or was reckless as to whether harm of whatever degree might be caused when he ran out into the dual carriageway, such as to bring his case within section 20 of the 1861 Act. So the Tribunal was not persuaded that he had the necessary mens rea of recklessness to bring his actions within a section 20 offence. The Upper Tribunal made it clear in its judgment that the FTT's reasoning should be read in this way. It concluded that the FTT's finding that Mr Jones had not established that Mr Hughes was reckless was one to which a rational tribunal could have come and that it was not its function as an appellate body to substitute its own opinion of the facts even if it had been different from that of the tribunal. Fairly read, therefore, the reason why Mr Jones' appeal to the FTT failed was that it was not proved that an offence of the kind described by section 20 had been committed by Mr Hughes.
Lord Hope then considered the judgment of the Court of Appeal. The Court of Appeal appeared to have been unwilling to accept that the question that the FTT was asking itself was whether it could be satisfied that a section 20 offence had been committed rather than whether Mr Hughes' actions amounted to a crime of violence. It was also unduly critical of the FTT's reasoning, attributing to it things that it did not, in so many words, actually say. It was well established, as an aspect of tribunal law and practice, that judicial restraint should be exercised when the reasons that a tribunal gives for its decision are being examined. The appellate court should not assume too readily that the tribunal misdirected itself just because not every step in its reasoning is fully set out in it. The FTT accepted the evidence of PC Sexton. But the parts of his evidence referred to were elicited from him in cross-examination by counsel who was then appearing for Mr Jones. And PC Sexton's comment that in his experience it was very unusual for a suicide such as this to cause such extensive personal injuries and damage to vehicles could hardly be said to have been outside his expertise.
The Court of Appeal allowed itself to be unduly influenced by its own view that it was highly improbable that anyone who runs into the path of traffic on a busy motorway would not at the least foresee the possibility of an accident and of consequential harm being caused to other road users. The question whether Mr Hughes did actually foresee this possibility was for the FTT to answer, not the Court of Appeal. Taking its judgment overall, the Court of Appeal failed to identify a flaw in the reasoning of the FTT which could be said to amount to an error of law. The FTT appreciated that the question it had to consider first was whether an offence under section 20 had been committed. It identified correctly the tests that had to be applied and reached the conclusion that it was not satisfied that Mr Hughes did commit that offence. It did not go on to consider whether he had committed a crime of violence within the meaning of the Scheme because, having concluded that no crime was committed, it did not have to.
The Court of Appeal had not been able to demonstrate that it was entitled to interfere with the FTT's decision. Lord Hope would therefore allow the appeal and restore the decision of the FTT.
Lord Carnwath agreed with Lord Hope in questioning the description of the issue as "a jury question". That may have seemed an appropriate description in 1987, when Ex p Webb was decided. However, it needed to be updated. Where, as here, the interpretation and application of a specialised statutory scheme had been entrusted by Parliament to the new tribunal system, an important function of the Upper Tribunal was to develop structured guidance on the use of expressions which were central to the scheme, and so as to reduce the risk of inconsistent results by different panels at the First-tier level. Promotion of such consistency was part of the thinking behind the recommendation of Sir Andrew Leggatt for the establishment of an appellate tribunal (Tribunals for Users, One System, One Service, March 2001, paragraphs 6.9 to 6.26). It was adopted by the government in the 2004 White Paper, paras 7.14 to 7.21), which spoke of the role of the new appellate tier "in achieving consistency in the application of the law". Although the appeal from the First-tier Tribunal was to be limited to a point of law, it was observed that –
"for some jurisdictions this may in practice be interpreted widely, for instance to allow for guidance on valuation principles in rating cases. The general principle is that an appeal hearing is not an opportunity to litigate again the factual issues that were decided at the first tier. The role is to correct errors and to impose consistency of approach." (White Paper, para 7.19).”
Thus it was hoped that the Upper Tribunal might be permitted to interpret "points of law" flexibly to include other points of principle or even factual judgment of general relevance to the specialised area in question. That might have seemed controversial. However, as an approach it was not out of line with the developing jurisprudence in the appellate courts. In Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929, paras 20-28, Lord Hoffmann, in the leading speech, had considered the interpretation by the social security commissioners of the so-called "cooking test" for welfare benefits. He rejected the submission that, because the words used were ordinary English words, it should be treated as a pure question of fact, following Lord Reid's well known comments on the meaning of the words "insulting behaviour" in Cozens v Brutus [1973] AC 854, 861, which Lord Hoffmann thought had been given "a much wider meaning than the author intended" (para 23).
Commenting on the distinction between issues of law and fact, Lord Hoffmann said:
"26. It may seem rather odd to say that something is a question of fact when there is no dispute whatever over the facts and the question is whether they fall within some legal category. In his classic work on Trial by Jury (1956) Lord Devlin said, (at p 61):
'The questions of law which are for the judge fall into two categories: first, there are questions which cannot be correctly answered except by someone who is skilled in the law; secondly, there are questions of fact which lawyers have decided that judges can answer better than juries.'
Lord Carnwath said that it might be said that there were two kinds of questions of fact: there were questions of fact; and there were questions of law as to which lawyers had decided that it would be inexpedient for an appellate tribunal to have to form an independent judgment. But the usage was well established and caused no difficulty as long as it was understood that the degree to which an appellate court would be willing to substitute its own judgment for that of the tribunal would vary with the nature of the question. (In re Grayan Building Services Ltd [1995] Ch 241, 254-255).
45. Lord Hoffmann took this line of thinking a stage further in Lawson v Serco [2006] ICR 250, where the issue was the application of the Employment Rights Act 1996 to "peripatetic employments", involving substantial work outside the UK. He described this as "a question of law, although involving judgment in the application of the law to the facts" (para 24). Under the heading "fact or law", he said (para 34):
"Like many such decisions, it does not involve any finding of primary facts (none of which appear to have been in dispute) but an evaluation of those facts to decide a question posed by the interpretation which I have suggested should be given to section 94(1), namely that it applies to peripatetic employees who are based in Great Britain. Whether one characterizes this as a question of fact depends, as I pointed out in Moyna v Secretary of State for Work and Pensions [2003] UKHL 44; [2003] 1 WLR 1929, upon whether as a matter of policy one thinks that it is a decision which an appellate body with jurisdiction limited to errors of law should be able to review. I would be reluctant, at least at this stage in the development of a post-section 196 jurisprudence, altogether to exclude a right of appeal. In my opinion therefore, the question of whether, on given facts, a case falls within the territorial scope of section 94(1) should be treated as a question of law. On the other hand, it is a question of degree on which the decision of the primary fact-finder is entitled to considerable respect. In the present case I think not only that the Tribunal was entitled to reach the conclusion which it did but also that it was right….""
First, it seems now to be authoritatively established that the division between law and fact in such classification cases was not purely objective, but must take account of factors of 'expediency' or 'policy'. Those factors included the utility of an appeal, having regard to the development of the law in the particular field, and the relative competencies in that field of the tribunal of fact on the one hand, and the appellate court on the other. Secondly, even if such a question was classed as one of law, the view of the tribunal of fact must still be given weight.
That clarified the position as between an appellate court on the one hand and a first instance tribunal. But what if there was an intermediate appeal on law only to a specialist appellate tribunal? Logically, if expediency and the competency of the tribunal were relevant, the dividing line between law and fact might vary at each stage. Reverting to Hale LJ's comments in [Cooke v Secretary of State for Social Security [2002] 3 All ER 279 paras 5-17], an expert appellate tribunal, such as the Social Security Commissioners, was peculiarly fitted to determine, or provide guidance, on categorisation issues within the social security scheme. Accordingly, such a tribunal, even though its jurisdiction was limited to 'errors of law', should be permitted to venture more freely into the 'grey area' separating fact from law, than an ordinary court.
Arguably, 'issues of law' in this context should be interpreted as extending to any issues of general principle affecting the specialist jurisdiction. In other words, expediency required that, where Parliament had established such a specialist appellate tribunal in a particular field, its expertise should be used to best effect, to shape and direct the development of law and practice in that field.
LORD WALKER, LADY HALE AND LORD SUMPTION agreed.
FACTS:-
The Applicant was a lorry driver who suffered a catastrophic accident in January 2005, after a man ran into the middle of the road, causing another vehicle to swerve into him. An inquest found that the man’s intention was to commit suicide. In May 2007, the Applicant made an application to the CICA through his mother under the 2001 Scheme. His application was refused because the CICA took the view that the Applicant was not the victim of a criminal injury for the purposes of the Scheme. Although the man who caused the accident intended to commit suicide, he did not deliberately intend any harm to the users of the road. Mr Jones’ counsel submitted that the suicide had committed an offence under Section 22A of the Road Traffic Act 1988 (interfering with a motor vehicle) and Section 20 of the Offences against the Person Act 1861, grievous bodily harm. Mr Jones appealed to the First Tier Tribunal but they affirmed the Authority’s decision and said that suicide per se was not a crime. Mr Jones appealed against that decision to the Court of Appeal who allowed his appeal. It remitted the matter to a differently constituted First-tier Tribunal to reconsider the issue of recklessness in the light of the reasons given in the court's judgment. The CICA then petitioned the UK Supreme Court.
JUDGMENT:-
Lord Hope went over the facts of the case. He said that the CICA Scheme was made under section 1 of the Criminal Injuries Compensation Act 1995. That Act was enacted to establish a scheme for compensation for criminal injuries in place of the non-statutory system which had been in existence since 1964 following the publication of the White Paper "Compensation for Victims of Crimes of Violence" (1964) (Cmnd 2323). In para 13 of the White Paper it was acknowledged that personal injury might arise from a great variety of offences and it refrained from specifying a comprehensive list of crimes whose victims might apply for compensation. The 1964 Scheme did not set out a list of that kind either. But revisions to the 1964 Scheme in 1969 introduced into it the words "crime of violence" for the first time. As amended, the 1964 Scheme provided for applications for compensation in circumstances where the applicant had sustained "personal injury directly attributable to a crime of violence (including arson and poisoning)". The same wording was used when a new scheme was introduced in 1979. That scheme was replaced by the Criminal Injuries Compensation Scheme which was introduced by the CICA on 27 November 2012.
Lord Hope then considered section 20 of the 1861 Act, which said:-
"Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanour, and being convicted thereof shall be liable … to be kept in penal servitude."
In R v Mowatt [1968] 1 QB 421, 425 Diplock LJ observed that the expression "unlawfully and maliciously" was a fashionable phrase of the Parliamentary draftsman in 1861. It is plain that it was not to be taken to have been used here in the old, rather vague, sense of wickedness. A more precise appreciation as to the test it lay down was required. In R v Cunningham [1957] 2 QB 396 the Court of Criminal Appeal approved of the principle which had been propounded by Professor C S Kenny in the first edition of his Outlines of Criminal Law (1902) and had been repeated in the 16th edition (1952), p 186, that any statutory definition of a crime must be taken to require either (1) an actual intention to do the particular kind of harm that in fact was done, or (2) recklessness as to whether such harm should occur or not (in other words, that the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). His description of the principle was approved and applied by the House of Lords in R v Savage; DPP v Parmenter [1992] 1 AC 699: see Lord Ackner at p 752. Mustill LJ said in the Court of Appeal in that case at p 706 that the judgment in R v Mowatt laid down two propositions, one positive and one negative:
"The positive proposition was that to found a conviction under section 20 it must be proved that the defendant actually foresaw that physical harm to some other person would be the consequence of his act. This is subject to the negative qualification, that the defendant need not actually have foreseen that the harm would be as grave as that which in the event occurred."
It was pointed out that the words "should have foreseen" in Mowatt were intended to bear the same meaning as "did foresee" or simply "foresaw".
Lord Hope then went over the various attempts by the court to define a “crime of violence”. He referred to the following cases:-
- R v Criminal Injuries Compensation Board, Ex p Clowes [1977] 1 WLR 1353
- R v Criminal Injuries Compensation Board, Ex p Webb [1987] QB 74
- C, Petitioner 1999 SC 551
- R (August) v Criminal Injuries Compensation Appeals Panel [2001] QB 774
In August, para 21, Buxton LJ said that he accepted counsel's submission that the issue for the panel of whether a crime of violence had taken place was a jury question. Lord Hope said that it would be more accurate to say that it was for the tribunal which decided the case to consider whether the words "a crime of violence" did or did not apply to the facts which had been proved. Built into that phrase, there were two questions that the tribunal had to consider.
- The first was whether, having regard to the facts which had been proved, a criminal offence had been committed.
- The second was whether, having regard to the nature of the criminal act, the offence that was committed was a crime of violence.
It was primarily for the tribunals, not the appellate courts, to develop a consistent approach to these issues, bearing in mind that they are peculiarly well fitted to determine them. A pragmatic approach should be taken to the dividing line between law and fact, so that the expertise of tribunals at the first tier and that of the Upper Tribunal can be used to best effect. An appeal court should not venture too readily into this area by classifying issues as issues of law which were really best left for determination by the specialist appellate tribunals.
The question whether a criminal offence had been committed was a question for the tribunal, having informed itself as to what the law required for proof of that offence, to determine as a matter of fact. The question whether the nature of the criminal act amounted to a crime of violence might or might not raise an issue of fact for the tribunal to determine. This would depend on what the law requires for proof of the offence. For example, some of the common law crimes known to the law of Scotland were quite loosely defined. The range of acts that fell within the broad definition might vary quite widely, so the question whether there was a crime of violence would have to be determined by looking at the nature of what was done. But in this case the words of the statute admitted of only one answer. They spoke for themselves.
To wound or inflict any grievous bodily harm on another person unlawfully or recklessly, foreseeing that physical harm to some other person would be the consequence of his act, was a crime in terms of section 20 of the 1861 Act. It was also a violent act. So too was the unlawful or reckless application of physical force of any kind to the person, directly or indirectly, so that they suffered injury – frightening or threatening someone so that they ran into the road and were hit by a car. In Reg v Martin (1881) 8 QBD 54, where the accused by unlawful conduct caused panic in the course of which a number of people were injured. The crime that section 20 defined would always amount to a crime of violence for the purposes of the scheme for compensation for criminal injury.
Lord Hope considered the decision of the First-tier Tribunal. The tribunal accepted the evidence of PC Sexton that probably the primary aim of the man who caused the accident, a Mr Hughes, was to be certain of causing his own death and that in his experience it was very unusual for a suicide in this manner to cause such extensive personal injuries and damage to vehicles. Mr Hughes may have been careless of the injuries that may have been caused to third parties by his actions. However the tribunal were not satisfied that the facts of the case demonstrated that Mr Hughes intended to cause harm or was reckless as to whether harm of whatever degree might be caused when he ran out into the dual carriageway, such as to bring his case within section 20 of the 1861 Act. So the Tribunal was not persuaded that he had the necessary mens rea of recklessness to bring his actions within a section 20 offence. The Upper Tribunal made it clear in its judgment that the FTT's reasoning should be read in this way. It concluded that the FTT's finding that Mr Jones had not established that Mr Hughes was reckless was one to which a rational tribunal could have come and that it was not its function as an appellate body to substitute its own opinion of the facts even if it had been different from that of the tribunal. Fairly read, therefore, the reason why Mr Jones' appeal to the FTT failed was that it was not proved that an offence of the kind described by section 20 had been committed by Mr Hughes.
Lord Hope then considered the judgment of the Court of Appeal. The Court of Appeal appeared to have been unwilling to accept that the question that the FTT was asking itself was whether it could be satisfied that a section 20 offence had been committed rather than whether Mr Hughes' actions amounted to a crime of violence. It was also unduly critical of the FTT's reasoning, attributing to it things that it did not, in so many words, actually say. It was well established, as an aspect of tribunal law and practice, that judicial restraint should be exercised when the reasons that a tribunal gives for its decision are being examined. The appellate court should not assume too readily that the tribunal misdirected itself just because not every step in its reasoning is fully set out in it. The FTT accepted the evidence of PC Sexton. But the parts of his evidence referred to were elicited from him in cross-examination by counsel who was then appearing for Mr Jones. And PC Sexton's comment that in his experience it was very unusual for a suicide such as this to cause such extensive personal injuries and damage to vehicles could hardly be said to have been outside his expertise.
The Court of Appeal allowed itself to be unduly influenced by its own view that it was highly improbable that anyone who runs into the path of traffic on a busy motorway would not at the least foresee the possibility of an accident and of consequential harm being caused to other road users. The question whether Mr Hughes did actually foresee this possibility was for the FTT to answer, not the Court of Appeal. Taking its judgment overall, the Court of Appeal failed to identify a flaw in the reasoning of the FTT which could be said to amount to an error of law. The FTT appreciated that the question it had to consider first was whether an offence under section 20 had been committed. It identified correctly the tests that had to be applied and reached the conclusion that it was not satisfied that Mr Hughes did commit that offence. It did not go on to consider whether he had committed a crime of violence within the meaning of the Scheme because, having concluded that no crime was committed, it did not have to.
The Court of Appeal had not been able to demonstrate that it was entitled to interfere with the FTT's decision. Lord Hope would therefore allow the appeal and restore the decision of the FTT.
Lord Carnwath agreed with Lord Hope in questioning the description of the issue as "a jury question". That may have seemed an appropriate description in 1987, when Ex p Webb was decided. However, it needed to be updated. Where, as here, the interpretation and application of a specialised statutory scheme had been entrusted by Parliament to the new tribunal system, an important function of the Upper Tribunal was to develop structured guidance on the use of expressions which were central to the scheme, and so as to reduce the risk of inconsistent results by different panels at the First-tier level. Promotion of such consistency was part of the thinking behind the recommendation of Sir Andrew Leggatt for the establishment of an appellate tribunal (Tribunals for Users, One System, One Service, March 2001, paragraphs 6.9 to 6.26). It was adopted by the government in the 2004 White Paper, paras 7.14 to 7.21), which spoke of the role of the new appellate tier "in achieving consistency in the application of the law". Although the appeal from the First-tier Tribunal was to be limited to a point of law, it was observed that –
"for some jurisdictions this may in practice be interpreted widely, for instance to allow for guidance on valuation principles in rating cases. The general principle is that an appeal hearing is not an opportunity to litigate again the factual issues that were decided at the first tier. The role is to correct errors and to impose consistency of approach." (White Paper, para 7.19).”
Thus it was hoped that the Upper Tribunal might be permitted to interpret "points of law" flexibly to include other points of principle or even factual judgment of general relevance to the specialised area in question. That might have seemed controversial. However, as an approach it was not out of line with the developing jurisprudence in the appellate courts. In Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929, paras 20-28, Lord Hoffmann, in the leading speech, had considered the interpretation by the social security commissioners of the so-called "cooking test" for welfare benefits. He rejected the submission that, because the words used were ordinary English words, it should be treated as a pure question of fact, following Lord Reid's well known comments on the meaning of the words "insulting behaviour" in Cozens v Brutus [1973] AC 854, 861, which Lord Hoffmann thought had been given "a much wider meaning than the author intended" (para 23).
Commenting on the distinction between issues of law and fact, Lord Hoffmann said:
"26. It may seem rather odd to say that something is a question of fact when there is no dispute whatever over the facts and the question is whether they fall within some legal category. In his classic work on Trial by Jury (1956) Lord Devlin said, (at p 61):
'The questions of law which are for the judge fall into two categories: first, there are questions which cannot be correctly answered except by someone who is skilled in the law; secondly, there are questions of fact which lawyers have decided that judges can answer better than juries.'
Lord Carnwath said that it might be said that there were two kinds of questions of fact: there were questions of fact; and there were questions of law as to which lawyers had decided that it would be inexpedient for an appellate tribunal to have to form an independent judgment. But the usage was well established and caused no difficulty as long as it was understood that the degree to which an appellate court would be willing to substitute its own judgment for that of the tribunal would vary with the nature of the question. (In re Grayan Building Services Ltd [1995] Ch 241, 254-255).
45. Lord Hoffmann took this line of thinking a stage further in Lawson v Serco [2006] ICR 250, where the issue was the application of the Employment Rights Act 1996 to "peripatetic employments", involving substantial work outside the UK. He described this as "a question of law, although involving judgment in the application of the law to the facts" (para 24). Under the heading "fact or law", he said (para 34):
"Like many such decisions, it does not involve any finding of primary facts (none of which appear to have been in dispute) but an evaluation of those facts to decide a question posed by the interpretation which I have suggested should be given to section 94(1), namely that it applies to peripatetic employees who are based in Great Britain. Whether one characterizes this as a question of fact depends, as I pointed out in Moyna v Secretary of State for Work and Pensions [2003] UKHL 44; [2003] 1 WLR 1929, upon whether as a matter of policy one thinks that it is a decision which an appellate body with jurisdiction limited to errors of law should be able to review. I would be reluctant, at least at this stage in the development of a post-section 196 jurisprudence, altogether to exclude a right of appeal. In my opinion therefore, the question of whether, on given facts, a case falls within the territorial scope of section 94(1) should be treated as a question of law. On the other hand, it is a question of degree on which the decision of the primary fact-finder is entitled to considerable respect. In the present case I think not only that the Tribunal was entitled to reach the conclusion which it did but also that it was right….""
First, it seems now to be authoritatively established that the division between law and fact in such classification cases was not purely objective, but must take account of factors of 'expediency' or 'policy'. Those factors included the utility of an appeal, having regard to the development of the law in the particular field, and the relative competencies in that field of the tribunal of fact on the one hand, and the appellate court on the other. Secondly, even if such a question was classed as one of law, the view of the tribunal of fact must still be given weight.
That clarified the position as between an appellate court on the one hand and a first instance tribunal. But what if there was an intermediate appeal on law only to a specialist appellate tribunal? Logically, if expediency and the competency of the tribunal were relevant, the dividing line between law and fact might vary at each stage. Reverting to Hale LJ's comments in [Cooke v Secretary of State for Social Security [2002] 3 All ER 279 paras 5-17], an expert appellate tribunal, such as the Social Security Commissioners, was peculiarly fitted to determine, or provide guidance, on categorisation issues within the social security scheme. Accordingly, such a tribunal, even though its jurisdiction was limited to 'errors of law', should be permitted to venture more freely into the 'grey area' separating fact from law, than an ordinary court.
Arguably, 'issues of law' in this context should be interpreted as extending to any issues of general principle affecting the specialist jurisdiction. In other words, expediency required that, where Parliament had established such a specialist appellate tribunal in a particular field, its expertise should be used to best effect, to shape and direct the development of law and practice in that field.
LORD WALKER, LADY HALE AND LORD SUMPTION agreed.