‘No evidence’, law versus facts and the ‘legality-merits’ distinction

Generally, courts have been reluctant to interfere by way of judicial review in the manner in which decision makers assemble facts and evidence so that the extent to which an absence or insufficiency of evidence constitutes a basis for judicial review has been difficult to determine precisely. This judicial reluctance to evaluate the evidence on which a decision is based reflects the ‘critical line between factual and legal matters’ and the historical importance which the law attaches to the conventional distinction between errors of law and errors of fact. As Aronson, Dyer and Groves have explained, the fact/law distinction is a fundamental tenet of legal doctrine, observable in most areas of law, albeit one of notorious difficulty in application. In a criminal trial, for instance, the role of the judge is to declare the law whilst the function of the jury is to determine the facts and in the process of litigation generally, the function of higher or appellate courts is mostly confined to resolving questions of law.

In administrative law, the fact/law distinction is readily observable in the relationship between administrative appeals and judicial review. In most systems of administrative decision-making, an appeal from a primary decision maker to a higher administrative official or tribunal usually means a re-hearing of the facts and evidence. On the other hand, intervention by way of judicial review means that the role of the court is confined to the correction of legal errors.