“From Law to Fact”: Supreme Court Confirms that Construing a Defence Statement Is Normally a Question of Fact
– A Commentary on Perry v R ([2025] UKSC 17)

1. Introduction

On 30 April 2025 the United Kingdom Supreme Court delivered a judgment of practical importance for criminal litigation, particularly in Northern Ireland where non-jury trials are common in terrorism matters. In Perry v R ([2025] UKSC 17) the Court was asked, in substance, whether the meaning of a defence statement served under the Criminal Procedure and Investigations Act 1996 (CPIA) is a question of law, to be decided conclusively by the trial judge (and therefore open to unrestricted appellate review), or a question of fact, to be resolved by the fact-finder (jury or judge sitting alone) and largely immune from appellate interference.

The appeal arose from the conviction of Ms Nicola Perry for an offence under s.58(1)(a) of the Terrorism Act 2000 (“collecting or making a record of information likely to be useful to a terrorist”). Her allegedly incriminating handwritten “coded” notes were discovered during a police search in 2018. Ms Perry contended that she merely copied already-existing notes anonymously delivered to her in late 2017, that she did not “collect” the information, and that in any event the material had long since lost any operational value.

The trial judge (O’Hara J) rejected her evidence, reading paragraph 4(n) of her defence statement as implicitly admitting knowledge that the notes related to Kevin Nolan’s 2015 arms find and 2017 sentence, and that any value in them had dissipated because of that time-lapse. The Court of Appeal upheld both the conviction and the judge’s reading of the defence statement, describing it as “obvious” and “irresistible”. The certified question presented to the Supreme Court was:

“In a jury trial, is the construction of a defence statement provided under Part 1 of the CPIA 1996 a question of law for the trial judge?”

Although cast in broad terms, all parties agreed that an abstract answer was impossible; the Court’s task was to decide whether in this case the construction of paragraph 4(n) involved fact or law, and what standard of appellate review therefore applied.

2. Summary of the Judgment

Giving the only reasoned judgment (with Lords Reed, Hodge, Lloyd-Jones and Leggatt concurring), Lord Hamblen held:

• The interpretation of a defence statement may sometimes be a question of law (where its legal effect is at issue) and sometimes one of fact (where its meaning or intention is contested). The distinction depends on context.
• In Ms Perry’s case the issue was purely factual: what did paragraph 4(n) mean to her and to the reader, and how did it interact with her oral evidence? Applying the classic Smith classification, that question falls to the fact-finder.
• Accordingly appellate intervention was tightly circumscribed. Ms Perry could succeed only by showing a misdirection in law or a perverse finding. Neither threshold was met; the trial judge’s reading of paragraph 4(n) was neither illogical nor plainly wrong.
• Because both the trial court and the Court of Appeal had made concordant findings of fact, the Supreme Court’s settled practice against disturbing “concurrent findings” applied with special force.
• The appeal was dismissed and the certified question answered: the construction of a defence statement is generally factual unless it concerns the document’s legal effect. In a jury trial that factual issue is for the jury; in a non-jury trial it is for the judge as fact-finder.

3. Analysis

3.1 Precedents Cited and Their Influence

The Court drew upon a lineage of authority dividing issues of law from issues of fact:

• R v Adams [1993] Crim LR 525 – Professor Sir John Smith’s noted commentary (reproduced in the judgment) sets out the trichotomy: (i) legal effect of a document (law); (ii) meaning intended by maker (fact); (iii) meaning understood by reader (fact).
• R v Thain [1985] NI 457 and Northern Ireland Railways v Tweed (1982) – leading Northern Irish authorities on the limits of appellate intervention in fact-finding by a judge sitting alone. Lord Lowry’s four-fold classification (primary facts, inferences, misdirection, conjecture) underpins modern practice.
• Smith New Court Securities Ltd v Scrimgeour Vickers [1997] AC 254 and Three Rivers (No 3) [2003] 2 AC 201 – House of Lords statements on the reluctance to disturb concurrent findings of fact.
• Privy Council cases such as Central Bank of Ecuador v Conticorp [2015] UKPC 11 and Sancus Financial Holdings v Holm [2022] UKPC 41 confirming the same restraint.

By weaving these strands together Lord Hamblen signalled that the Court was not creating new doctrine but re-affirming a well-settled common law taxonomy: legal effect is for judges as a matter of law; disputed meanings are factual matters for those charged with finding facts.

3.2 The Court’s Legal Reasoning

1. Characterisation of the Issue. The Court first isolated the precise question: whether the juxtaposition of two sentences in paragraph 4(n) logically linked the expiry of the notes’ “currency” to the lapse of time since Nolan’s conviction. That is a question of intention and inference, not of legal effect.
2. Application of the Smith Test. Lord Hamblen adopted Professor Smith’s (i)/(ii)/(iii) framework. Because no question of statutory compliance or admissibility depended on the defence statement’s wording, only its evidential weight, the matter fell under limb (ii)/(iii).
3. Appellate Standard. Categorising the issue as factual deployed the stringent Thain/Tweed limits on overturning findings:
   • Was there evidence on which the finding could be based?
   • Did the judge misapply legal principles, misunderstand, or misuse the facts?
   • Was the decision perverse?
   The Court of Appeal had already answered “no” to each.
4. Examination of Alleged Perversity. Ms Perry argued that the absence of the word “therefore” severed any logical link between the two sentences. The Supreme Court deemed that submission unrealistic; normal English usage, context, and the absence of any alternative explanation sufficiently supported the trial judge’s reading.
5. Marginal Significance. Even if the construction were debatable, it was only one strand in a mesh of five credibility reasons. The Court, echoing the Court of Appeal, observed that the conviction would have stood regardless.

3.3 Likely Impact of the Decision

The judgment embeds a clear practical rule:

• When a defence statement is relied on purely for its evidential value (e.g. to expose inconsistencies), its interpretation is a factual question for the tribunal of fact.
• Appellate courts may interfere only on classic “misdirection or perversity” grounds. Arguments styled as errors of law will be repelled unless the defence statement’s legal effect (non-compliance, exclusionary rule, etc.) is at stake.
• This protects the efficacy of the CPIA disclosure regime: defence statements, though served for investigative fairness, can be used against defendants, and disputes about their meaning will rarely open the door to second-appeal scrutiny.
• For jury trials in England & Wales the same logic applies: meaning questions may be left to the jury (with directions) rather than decided by the judge as a matter of construction.
• The decision promotes finality and curtails dilatory satellite appeals based on imaginative readings of defence statements. It is therefore likely to be cited in future terrorism and serious-crime appeals across the UK.

4. Complex Concepts Simplified

Defence Statement (CPIA 1996, s.6A)

A document in which the accused outlines the nature of their defence, indicates which prosecution facts are disputed and why, and raises any legal points. It assists disclosure and case management.

Question of Law vs Question of Fact

Law: issues about the meaning of statutes, legal standards, or the legal effect of documents.
Fact: what happened, credibility of witnesses, or what a party intended by certain words.
A judge directs on law; a jury (or judge in a non-jury trial) decides fact.

Concurrent Findings of Fact

When the trial court and an intermediate appellate court reach the same factual conclusion. The Supreme Court will overturn such findings only in the clearest cases of error.

Section 58 Terrorism Act 2000

Criminalises collecting, making or possessing information likely to be useful for terrorism, unless the person has a reasonable excuse.

Non-Jury (Diplock-type) Trials

Under the Justice and Security (Northern Ireland) Act 2007, certain terrorism-related cases may be tried without a jury to guard against intimidation. The judge plays a dual role, deciding both fact and law.

5. Conclusion

Perry v R settles an important procedural point: the ordinary meaning of a defence statement is a factual matter, not a pure matter of law, unless the dispute concerns the statement’s legal efficacy. The ruling reinforces two orthodoxies: first, that appellate courts should respect primary fact-finding; and second, that criminal appeals exist to correct legal errors, not to re-try factual disputes.

For practitioners the message is clear:

• Craft defence statements with precision; they may be scrutinised as evidence in chief.
• If alleging judicial misinterpretation, be ready to demonstrate perversity, not mere arguability.
• Understand that second appeals on factual construction will face a steep, perhaps insurmountable, gradient.

In a broader sense, the decision harmonises criminal procedure with long-standing civil practice and Privy Council guidance: higher courts concentrate on points of principle, leaving fact-sensitive evaluations to the courts best placed to undertake them. By dismissing Ms Perry’s appeal, the Supreme Court has not only upheld her conviction but also fortified the boundary between law and fact in criminal litigation.