QUESTIONS OF DEGREE
| Published date | 01 July 1969 |
| DOI | http://doi.org/10.1111/j.1468-2230.1969.tb01221.x |
| Date | 01 July 1969 |
THE
MODERN LAW REVIEW
Volume
32
July
1969
No.
4
QUESTIONS
OF
DEGREE
WHEN
British judges are asked to determine whether a given set
of facts falls within the terms of a statutory provision they
frequently say that
it
is all a question of degree.
In
recent years,
this method has been used to answer such questions as whether a
tea-break was too long,l whether a bottle of whisky was an
“
emolu-
ment
”
2
and whether a
‘‘
nest
”
of prostitutes was a br~thel.~
HOW
does one recognise a question of degree
?
This is a matter of some
practical importance because, in appeals under the Income Tax Act
and other statutes where review is restricted to questions of law, a
question of degree is regarded as a question of fact which cannot
normally be examined by the appellate tribunal.
It
is also a matter
of theoretical interest because the frontier between questions of fact
and questions of law seems to run through the region
of
questions of
degree.4
It
is
first
of all desirable to examine a well-developed judicial
theory about questions of degree which can be stated in the following
propositions
:
(1)
words used in statutes are either
‘‘
terms of art
”
or
(2)
it
is possible and proper for judges
to
define
‘‘
terms of art
”;
(ti)
most
“
ordinary English words
”
cannot be defined
7;
(4)
in any event, “ordinary English words
”
should not be
defined by judges because Parliament would have defined
them
if
it
had wished to do
so
‘‘
ordinary English words
”
;
1
R.
v.
Industrial Injuries Commissioner, ex p. Amalgamated Engineering Union
(No.
2)
[1966]
2
Q.B.
31
(C.A.).
2
Laidler
v.
Perry
[1965]
1
Ch.
192
(C.A.).
3
Donovan
v.
Gavin
[1965] 3
W.L.R.
352
(D.C.).
4
See Wilson
(1963) 26
M.L.R.
609.
Questions
:f
degree are discussed in Glan-
ville Williams,
“
Language and the Law-I1
5
See
Sydall
v.
Castings Ltd.
[1966] 3
All E.R.
770
(C.A.),
per
Diplock L.J.
at
p.
774.
6
There may be
a
third class
of
technical words the meaning
of
which musb be
decided
on
evidence-ProDhet
v.
PZatt Brothers
d
Co. Ltd.
r19611
1
W.L.R.
(1945) 61
L.Q.R.
179.
...,
1130
(C.A.)
(“
fettling
”j.
7
Lord Reid,
Hinton
v.
Maden and Ireland Ltd.
[1959]
1
W.L.R.
875,
886;
Lord Denning,
Grifiths
v.
J.
P.
Harrison (Watford) Ltd.
[1963]
A.C.
1,
20.
8
Lord Warrington
of
Clyffe,
Girls’ Public Day School Trust
v.
Ereaut
[1931]
A.C.
12,27;
Upjohn
L.J.,
Stephens
v.
CuckfieZd R.D.C.
[1960] 2
Q.B.
373, 382.
VOL.
32
361
13
THE
MODERN
LAW
REVIEW
VOL.
32
in any event,
it
is unwise for a judge to attempt to define
an
“
ordinary English word
”
because
“
a set of facts not
present to the mind of the judicial propounder, and not
raised in the case before him, may immediately arise to
con-
found his proposition
”
g;
“
ordinary English words
”
which cannot
(or
at least should
not) be defined give rise to questions of degree
lo;
a question as to the application of an
“
ordinary English
word
’’
should be answired as the ordinary man,ll
‘‘
the
man
on
the Stoke Newington bus,”
l2
or
‘‘
the ordinary
intelligent subject, taking down the volume of the statutes
and reading the section,”
l8
would answer
it;
proposition
(4)
might be qualified by the concession that
it
is permissible to define
“
ordinary English words
”
if
Parlia-
ment has used them with a special meaning
or
if the
definition is derived from their
“
essential and inherent
meaning.”
15
It
is submitted that this theory over-simplifies the position.
It
is not merely a matter of dividing words into the indefinable,
which give rise to questions
of
degree, and the definable, which do
not. In the first place, it has been argued that
no
word is in-
definable.la
W.
E.
Johnson suggested that a word is said to be
indefinable
if
a definition is not
required.
He defined the indefinable
as
“
that whose meaning is
so
directly and universally understood,
that it would be mere intellectual dishonesty to ask for further
definition.”
l7
That is
no
doubt why cheese is defined in the
Statute
Book
as
“
the substance usually
known
as cheese.”
Secondly, the judicial theory implies that once a question is
determined to be one of degree, matters of definition and law cannot
enter into
it.
Whether a part of a machine is
“
dangerous
”
is
a question
of
degree
lU
but judges have frequently
propounded
‘‘
tests
)’
to be applied in determining the question and
these tests, although they do not as a rule give a direct answer to
the question, are definitions.20 Similarly,
it
has been said that
questions of degree must be decided
on
correct
“
principles,” which
9
Per
Gcrutton
L.J.,
I.R.C.
v.
Muse
[1919] 1
K.B.
647, 657.
See
also
10
Lord Buckmaster,
I.R.C.
v.
Lysaght
[1928]
A.C.
234, 247.
11
Lord Dunedin,
Trim School Board
v.
Kelly
[1914]
A.C.
667,
685;
Viscount
12
L.C.C.
v.
Tann
[1954] 1
W.L.R.
371, 374.
13
Per
Du
Parcq
L.J.,
Caw
V.
I.R.C.
[1944] 2
All
E.R.
163, 167.
14
Upjohn
L.J.,
Stephew
v.
Cuckfield R.D.C., supra,
at
p. 382.
15
Lord Macmillan,
Girls’ Public Day School Trust
v.
Ereaut, supra,
at
p. 33.
1.5
Robinson,
Definition
(1954), pp. 41-52.
17
Logic
(1921),
i,
106.
18
Food and Drugs Act
1955,
s.
135.
19
Carr
v.
Mercantile Produce Co. Ltd.
[1949]
2
K.B.
601
(D.C.);
Mackay
v.
Ailsa
Shipbuilding Co. Ltd.
1945
S.C,
414, 418.
20
Hindfe
v.
Birtroistle
[l897] 1
Q.B.
192, 195;
Walker
v.
Bletchley Flettons
Ltd.
[1937] 1
All
E.R.
170;
Mitchell
v.
North British Rubber Co.,
1945
J.C.
69, 73.
This is not
so.
D.50.17.202.
Sumner,
I.R.C.
v.
Lysaght, supra,
at
p. 246.
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