“Fact” in Law

Dr John Rumbold, Lecturer at NLS NTU https://www.ntu.ac.uk/staff-profiles/law/john-rumbold

As lawyers, we use the term “fact” in very particular ways, which are confusing for the layperson and even expert witnesses. The legal facts are the full circumstances of the case as determined by the triers of fact – essentially what they accept happened. Some circumstances may be indeterminable, so the case may proceed on the basis of a mutually agreed assumption. The burden of proof will be on one of the parties and the default position is that the fact has not been proven. There are a number of presumptions in law. These may be rebuttable – for example, the presumption of capacity in adults, the presumption of criminal responsibility in children between the ages of 10 and 14, the presumption of sanity. It will be presumed in certain circumstances that a person is dead. This is a mechanism for permitting certain things to happen that would otherwise require proof of death. The court knows that this might not be the case, but it does not know that this is untrue. The concerns of the courts usually revolve around epistemological issues – that is, how we can establish the truth. Sometimes there are ontological issues – that is, how we can establish the nature of something. Often a particular definition of a term is provided in e.g. statutes where there is the possibility of confusion. Occasionally, the very nature of something is contested in court.

What is considered factual is distinct to what is legal. Take, for example, a defendant who is found guilty of murder, but whose conviction is quashed a year later due to new forensic evidence. For that period of time, he will have been deemed legally guilty, although he was always factually innocent. This has important procedural consequences – if the person exhausts all direct appeal routes, they may apply to the Criminal Cases Review Commission (CCRC) to challenge the verdict in the Court of Appeal (but will need to convince them that there is a real possibility that the conviction will be considered unsafe by that court). This typically requires new evidence or argument not raised in earlier proceedings.

Many would have considered OJ Simpson factually guilty, although he had been acquitted by a criminal jury. A subsequent civil trial found him responsible for the wrongful death of his wife, creating a seemingly paradoxical situation where he was simultaneously legally ‘liable’ for the killing yet ‘not guilty’ of the murder charge. This divergence—stemming from the differing standards of proof in criminal and civil proceedings—often leads to public confusion and can be disorienting for those involved. A further example can be located in coronial inquests and public inquiries which are legal processes designed as truth-finding mechanisms. A finding of unlawful killing in the Hillsborough inquest was not followed by a conviction for manslaughter. The inquisitorial nature of such procedures contrasts sharply with the adversarial orientation of the criminal and civil courts, although this has arguably been eroded in recent years as various parties seek to retain counsel.

While legal facts are therefore multifaceted and context-dependent, legal fictions are constructs within the law that are known or assumed to be untrue, yet may also be accepted as facts for the sake of legal consistency or function (see the comments of counsel in Forstater v CGD). A case in point arises in relation to the effect of acquired gender, recognised by a Gender Recognition Certificate (GRC)It is not a legal fiction in the narrow sense in that the construct of an acquired gender is not a device for the interpretation of the statue, but an integral part of the statute itself.

However, in a broader conceptual sense, the question of a legal fiction becomes more complex (as discussed above). The main reason for the difficulty is the use of sex and gender in the Gender Recognition Act. That legislation provides that, subject to a number of exceptions and other statutory provisions, a person’s sex is to be treated as their acquired gender “for all purposes” once a GRC is issued. If gender means sex, then it is clearly a legal fiction. If gender means perceived sex or a gender role or identity, then it could be considered a legal fact with the Gender Recognition Certificate merely registering actual fact (in the same way that rectification of birth certificates for people wrongly assigned biological sex can occur). The Supreme Court has now provided clarity on the meaning of woman in the Equality Act vis a vis Gender Recognition Certificates in the appeal of For Women Scotland Ltd v The Scottish Ministers. In one of the most important decisions of recent years, the court ruled that “woman” (or “man”) in the Equality Act referred to biological sex, not acquired gender. This decision carries a number of important legal and social implications, particularly for the interpretation and application of sex-based rights and protections.

This ruling also highlights a broader issue in statutory interpretation: the tension between legal definitions and common or dictionary understandings of terms. A striking parallel can be drawn with a case from California, where a court classified bees as “fish” under the state’s Endangered Species Act.in the Californian courts. It was more correctly categorising a bee as “a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals”, which was the expansive definition of fish in the Game Code. While seemingly absurd, since the aim of the courts was to protect the environment, they allowed this creative application of the definition. It could be argued that a similar dynamic may be observed in the Supreme Court’s approach to the Equality Act, reflecting a judicial effort to preserve the coherence and purpose of the statute in light of evolving social understandings of gender.  

Similarly, the courts had to grapple with the effects of a GRC in McConnell and Anor v The Registrar General for England and Wales. It is notable that it was stated that it was not possible to interpret cat as dog even using the purposive technique – although it was possible that the category of dog could be expanded after the passage of such legislation. This comment provides us with useful insights on the factual status of mother and father, or indeed male and female. The Court of Appeal clearly was not willing to state that a biological female who had born a child was a father, even though it used masculine pronouns for the claimant throughout its judgment.

Generally, the courts are not concerned with proving whether or not something is an actual fact as such, especially outside the confines of the case. This might be regarded as epistemological or even ontological humility, on the assumption that most judges do not feel able to resolve the thorny conundrums of our age. Judges have not declared that Santa Claus is real (or not real), contrary to the plot of Miracle on 34th Street. The Court of Appeal in the case of the Ouija board jurors did not pronounce on whether or not the jurors could genuinely contact spirits on the other side. In fact, Lord Taylor states

“It seems to us that what matters is not whether the answers were truly from the deceased, but whether the jurors believed them to be so”.

Whether the evidence genuinely came from the next world or not, it was inadmissible as it had not been introduced at trial. This does raise the question of whether or not this opens up the possibility of seances in court.

The court is nearly always concerned with the facts of a particular situation, with no need to make any pronouncements about general truths. This is not always the case.

Forstater and Fact versus Belief

When Forstater was arguing for her right to assert that sex is real, important and immutable, the Appeal Tribunal did not rule on whether or not that belief was factually correct. This has unsettled some commentators, who argue that treating such a statement as a “belief” rather than a scientific fact reflects a misunderstanding of biological science.  Certainly, the evidence adduced by the respondents to suggest that the claimant’s position was unscientific was implicitly criticised. The courts also recognise that the essence of the scientific method is that nothing is ever set in stone. However, the discovery of quantum physics did not disprove Newtonian physics as such – and apples still fall from trees.  

The explanation given by Justice Choudhury was that it was unnecessary for the appeal tribunal to rule on this, as the law only required that this was a protected belief for her claim to succeed. It was remarked that it should have only taken the preliminary tribunal a day to examine the basis of the claimant’s belief. A remark that could be read as a subtle rebuke of the lower tribunal’s approach.

This case also highlights a broader issue: the legal framework protects beliefs, not facts. We might surmise that the main reason why the European Convention on Human Rights and the Equality Act only protect belief is that the drafters did not envisage a requirement to protect the expression of fact. Generally statements of fact are not unlawful, barring certain specific contexts such as the misuse of confidential information and disclosure of spent offences in some circumstances.

However, the law recognises that even truthful statements can be made to be hurtful (St Augustine stated “We should never use the truth to wound”). Stating facts about someone’s appearance, for example, could therefore be harassment in certain limited circumstances. The judgment in Forstater  emphasises that misgendering in some circumstances would amount to harassment, and we know that failure to use preferred pronouns in court may lead to certain sanctions as per the Equal Treatment Bench Book (although it is not required that victims of sexual offences use preferred pronouns).

Ultimately, the courts had no obligation to determine whether sex is real, important, or immutable The focus of the case was whether the claimant’s philosophical belief satisfied the Grainger criteria. This expands on the ratio decidendi of McClintock that “an opinion or viewpoint based on the present state of information available” (words of Burton J in Grainger) was not protected as a philosophical belief.

Historical fact

Sometimes the courts are required to determine what constitutes an historical fact, and such determinations can be central to the dispute. For instances, in cases involving Holocaust denial or Nazi state crimes, courts must assess whether certain events are so well-established in the historical record that denying them constitutes unlawful speech or defamation. A notable example arose in the German case of Vollbrecht v Humboldt University, where the court had to rule on whether it had been established one way or another as historical fact that transgender persons had been targeted systematically by the Nazi regime. While acknowledging that some transgender individuals were indeed persecuted, the court found no conclusive evidence of a systematic campaign against transgender people akin to the persecution of Jews, Roma, or other groups. 

Scientific fact

In contrast, the US legal system has developed mechanisms for handling complex scientific questions, particularly in mass tort litigation. One prominent example was based on the contention that silicone breasts implants could cause various illnesses, involving thousands of litigants and billions of dollars. A National Science Panel was convened by a federal judge which deliberated on all the evidence and provided a report. While the guide was intended to guide judicial decision-making, trial judges were under no obligation to use this report or accept its findings, and there were notable examples of judges declining to admit it into evidence.

The issue of scientific evidence to support silicone breast implants causing particular diseases seems like the kind of general scientific question that is amenable to a robust investigation by scientific experts. The cause of action implicitly relies on there being a plausible link between the alleged wrong and any damage (general causation) whereas the determination of causation in an individual case would still be an issue for trial (specific causation).

These examples underscore the persistent tension between scientific and legal reasoning. Scientists often express frustration with the legal system’s handling of scientific evidence. During my doctoral research (2010-13), I found that two of the most prominent experts in forensic sleep disorders consistently refused to provide expert evidence on the basis that the courts distort the science (although one of their colleagues does act as an expert witness). Their reluctance is understandable, although it also highlights a missed opportunity to improve judicial understanding of science. As many have found, science and law are, like the USA and UK, divided by a common language.

Further Reading

Cases

Cologne Higher Regional Court 15 U 208/22

For Women Scotland v The Scottish Ministers [2025] UKSC 16

Grainger plc v Nicholson [2010] IRLR 4

Maya Forstater v CGD Europe and Others: UKEAT/0105/20/JOJ

McConnell and Anor v The Registrar General for England and Wales [2019] EWCA 2384

R v Young (Stephen) [1995] QB 324 (Ouija board jurors appeal)

Commentary and Analysis

Commentary on bees as fish: Articles at A California Court Decision—Bees Are Fish—Shines New Light On The Biodiversity Crisis.

Commentary on the For Women Scotland case (prior to judgment): Can the meaning of "sex" in the Equality Act vary depending on context? Article at https://knowingius.org/p/can-the-meaning-of-sex-in-the-equality

Commentary of legal fictions: Moglen, E., 1990. Legal fictions and common law legal theory: some historical reflections. Tel Aviv U. Stud. L., 10, p.33.

Commentary on the Vollbrecht case: “You can now accuse the biologist Vollbrecht of denying Nazi crimes - but only if you are a transactivist.” Article at https://www.nzz.ch/international/nur-transaktivisten-duerfen-vollbrecht-leugnung-von-ns-verbrechen-vorwerfen-ld.1726045; the court found that the accusation of denial of Nazi state crimes was reasonable solely within the circle of trans activists, although objectively this was not true (there was never any accusation of Holocaust denial, contrary to many reports).

The Ouija board jurors appeal was also covered in great detail by Jeremy Gans in The Ouija Board Jurors: Mystery, Mischief and Misery in the Jury System by Waterside Press.

Commentary on the National Science Panel: Walker, L. and Monahan, J., 2000. Scientific Authority: The Breast Implant Litigation and Beyond. Virginia Law Review, pp.801-833.