England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/03/2014

Mr Justice Jay:

Introduction

1. This is an appeal by the Director of Public Prosecutions by way of case stated from the decision of District Judge Richardson made at Bury Magistrates' Court on 2^nd October 2013, where two informations laid against each of Mr Michael Issler and Mr Mordechai Bamberger were dismissed. The appeal raises a point of principle as to the meaning of the term "ambulance purposes" in relevant subordinate legislation.

The Informations

2. The information laid against Mr Issler alleged as follows:-

"On 14^th October 2012 at Bury you used a motor vehicle, namely a Renault Grand Espace Dynamique VRN L011YKS fitted with a siren, contrary to Regulation 37(4) of the Road Vehicles (Construction and Use) Regulations 1986 and Section 42 of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.

On 14^th October 2012 at Bury used on a road, namely Bury New Road, Prestwich, a vehicle, namely a Renault Grand Espace Dynamique VRN L011YKS fitted with a blue warning beacon contrary to Regulation 16 of the Vehicles Licensing Regulations 1989 and Section 42 of the Road Traffic Offenders Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988."

3. The information against Mr Bamberger alleged as follows:-

"On 14^th October 2012 at Bury you used a motor vehicle, namely a Mercedes VRN H5BYM fitted with a siren, contrary to Regulation 37(4) of the Road Vehicles (Construction and Use) Regulations 1986 and Section 42 of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.

On 14^th October 2012 at Bury used on a road, namely Bury New Road, Prestwich, a vehicle, namely a Mercedes VRN H5 BYM fitted with a blue warning beacon contrary to Regulation 16 of the Vehicles Licensing Regulations 1989 and Section 42 of the Road Traffic Offenders Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988."

Essential Factual Background and the Proceedings Below

4. The essence of the case against the respondents was that on 14^th October 2012 each had driven a motor vehicle fitted with two-tone sirens and blue flashing lights, that is, "blues and twos". At or shortly before 8.15pm that evening a road traffic accident occurred at the junction of Kings Road and Bury New Road on the outskirts of Bury involving a car and a motorcycle, and a police officer witnessed the respondents' vehicles approaching the scene at 8.17pm. On arrival, the drivers identified themselves as Hatzola Fast Response personnel. They were allowed to offer medical assistance in advance of the arrival of the NHS ambulance which was at 8.25pm. The respondents were then told that they would be reported in relation to the use of the "blues and twos", and a prosecution ensued.
5. The facts were not in dispute before District Judge Richardson. The respondents did not give evidence. The court heard evidence about Hatzola from Mr Myer Halpern. Paragraph 8 of the Case Stated reads, in material part, as follows:-

"Hatzola was an idea that started in the United States about forty years ago and aims to provide emergency first aid cover in a defined area, in this case Salford and parts of Bury, primarily but not exclusively for the Jewish community. There are twenty members in all in Salford of whom ten are trained paramedics. The two defendants are among those trained individuals. The training is extensive and ongoing and operating codes are clear and specific. They are an emergency service only and being local can be at an emergency quicker than an NHS ambulance. Their average response time is under two minutes compared to that of the NHS ambulances being that of seven to ten minutes. Once the NHS ambulance crew arrives they step aside unless requested to assist. They are trained only to use the blues and twos in genuine emergencies. … I was shown notes of serious injuries they had attended and indeed some photographs taken for training purposes, of deep lacerations they had dealt with as first responders. They carry a considerable amount of equipment in their vehicles. This includes defibrillators, oxygen and different sizes of neck brace as well as dressings, medications and some drugs though not those requiring a prescription. They wear high visibility uniforms when on a call. The overriding objective is the preservation of life but they act as first responders only. It is very rare for them to convey a patient to hospital and the vehicles or not designed or adapted for that purpose. They are privately owned and fitted with a two tone siren and blue flashing lights behind the radiator grill and inside the front and rear windscreens. I viewed one of the vehicles in the court car park on the day of the hearing, the Mercedes saloon and observed that the boot was literally packed with specialist equipment. The considerable costs of providing the equipment; regular training and manning the call centre twenty four hours a day are met by voluntary contributions from the Jewish community. All personnel are volunteers. Most have full time jobs in the locality and can be called out by radio operated from the call centre. I found Hatzola to be a responsible, dedicated and public-spirited organisation with well-trained and motivated operatives of whom the defendants were two."

6. No issue arose as the respondents' driving qualifications or road conditions that evening. We know that the accident happened on a Sunday, and it may be reasonable to infer that these roads were relatively quiet, but it would involve an exercise in speculation to deduce that the use of the "blues and twos" was unnecessary on this particular occasion. The nature and severity of the victim's injuries are unclear from the available material, but we do know from the "Operator Call Log" which was put in evidence by Mr Taylor without objection from Mr Heptonstall, that the victim was riding a motorcycle and was conveyed by NHS ambulance to A&E. This document also establishes that the respondents were working at the scene for eight minutes before NHS personnel arrived.
7. District Judge Richardson was referred to the case of Lord-Castle v DPP [2009] EWHC 87 (Admin), a decision of this Court comprising Scott Baker LJ and Maddison J. District Judge Richardson's findings were as follows:-

"11. Every case turns on its facts and the transporting of trained personnel to an accident scene as swiftly as possible is in my view covered. Clearly on some occasions the promptness of emergency treatment can be the difference between life and death and the use of blues and twos in gaining the Hatzola vehicle a quicker route through traffic may be critical to the survival of the patient. I concluded that conveying medically trained personnel to the emergency scene is very much a purpose of an ambulance.

12. Accordingly I found that both defendants were entitled to the benefit of the statutory exemptions and dismissed the summonsed offences".

8. The questions he posed to this Court were:

"Was I right to conclude:

(i) that the vehicles being driven by the defendants were being used for ambulance purposes; and

(ii) therefore to acquit both defendants?"

Relevant Provisions of Secondary Legislation

9. The general prohibition against the use of a siren is to be found in regulation 37(4) of the Road Vehicles (Construction and Use) Regulations 1986. This is subject, insofar as is relevant for present purposes, to regulation 37(5), which provides:-

"(5) The provisions of paragraph (4) shall not apply to motor vehicles –

(a) used for fire brigade, ambulance or police purposes…"

10. The 1986 Regulations contains no definition of "ambulance purposes", but the term "motor ambulance" is defined in regulation 3, as follows:-

"A motor vehicle which is specially designed and constructed (and not merely adapted) for carrying, as equipment permanently fixed to the vehicle, equipment used for medical, dental or other health purposes and is used primarily for the carriage of persons suffering from illness, injury or disability."

11. This definition is clearly relevant to regulation 32(11) of the 1986 Regulations where the term "motor ambulance" expressly features. The issue which arises is the extent to which it is also relevant to regulation 37(5).
12. The general prohibition against the use of blue lights, or anything similar, is to be found in regulation 16 of the Road Vehicles Lighting Regulations 1989, but it does not apply to a vehicle "other than an emergency vehicle". That is defined in regulation 3, as follows:-

"A motor vehicle of any of the following descriptions –

(a) a vehicle used for fire brigade, ambulance or police purposes;

(b) an ambulance, being a vehicle (other than an invalid carriage) which is constructed or adapted for the purposes of conveying sick, injured or disabled persons and which is used for such purposes;… "

13. On my understanding of his submissions, Mr Heptonstall suggested in his Reply that the term "ambulance purposes" in these two sets of regulations may bear different interpretations. This is a conclusion which no court would wish to reach unless driven to it; the starting-point must be that these are companion provisions which should be applied harmoniously. Fortunately, I am not driven to such a conclusion.

Lord-Castle v DPP [2009] EWHC 87 (Admin)

14. In that case Mr Lord-Castle, whilst driving a BMW motor car, was stopped by a police officer. In its boot was a first aid case containing dressings, plasters, bandages and scissors; a fire extinguisher; one neck collar; a hand-held ventilator (which appeared not to be sterile); a coil of tape; some blankets; a road flare; a rope; and a small ladder.
15. At police interview Mr Lord-Castle claimed that the BMW was an ambulance. If he were to see an accident and no medical assistance was already in attendance, he would attend if he felt this to be necessary; or associates might call him to an accident scene. He refused to discuss the level of his training and qualifications. He claimed to have conveyed an injured person from the scene of an accident on one sole occasion five years previously. He had no formal contact with any organisation in relation to what he did.
16. The trial of Mr Lord-Castle's case occupied three days of court time. Mr Lord-Castle did not give evidence himself. Instead, he called two witnesses whose evidence was rejected.
17. On the principal ground of appeal, Maddison J, giving the main judgment of this court, held that a vehicle might be "used for ambulance purposes" whether or not it is actually an "ambulance", however that word is defined.
18. Paragraphs 14 and 15 of Maddison J's judgment represent the crux of his reasoning, and I therefore set these out in full:-

"14. Moreover, although they do not expressly define "vehicle used for ambulance purposes", both the 1986 and 1989 Regulations indicate for what purposes an ambulance is in fact used. A "motor ambulance" within the 1986 Regulations is "…used primarily for the carriage of persons suffering from illness, injury or disability" and an "ambulance" within the 1989 Regulations is used "…for the purposes of conveying sick, injured or disabled persons". In this respect, the definitions are almost identical, and in my judgment they are consistent with the purposes for which an ambulance would be said to be used in everyday parlance. Accordingly, the test to be applied is in my judgment a simple one: is the vehicle concerned used (or primarily used) for conveying the sick, the injured or disabled? If so, it is "used for ambulance purposes". Otherwise, it is not. I do not accept the submission made by Mr Rule that "for ambulance purposes" should be defined more broadly to include, for example, the preservation of accident scene or the giving of first aid to, or otherwise caring for, injured persons at an accident scene pending the arrival of paramedics and/or an ambulance.

15. Whether or not a vehicle is "used for ambulance purposes" will be a question of fact and degree to be decided on the evidence in each case. Relevant factors may include, but will not necessarily be confined to, whether or not the vehicle concerned was in fact in the process of carrying one or more sick, injured or disabled persons (though the case of DPP v Hawkins [1996] RTR 160 makes it clear that this by itself is not determinative); the extent to which by reason of its construction and/or adaptation the vehicle concerned would be capable of carrying such persons; the frequency with which and the date(s) on which it had actually been used for such purposes in the past (if at all); and the nature and extent of the medical equipment and the expertise of the personnel in the vehicle concerned. I can see no reason in principle why for example a brand new fully-equipped ambulance of which a health authority had just taken delivery but which had not yet been put to use should necessarily be excluded from the definition to which I have referred."

19. Having held that the Deputy District Judge had applied the wrong test in law, Maddison J concluded that the outcome would inevitably have been the same had the correct test been applied. Relevant factors in Mr Lord-Castle's case comprised: the fact that he was using the BMW as a private car at the relevant time; that the BMW was not adapted to carry a casualty on a stretcher; that the medical equipment in the vehicle did not include defibrillation equipment, oxygen cylinders, an adjustable supported neck collar or a stretcher; there was no evidence that the BMW in question had ever actually been used to transport a sick, injured or disabled person; and, there was evidence that Mr Lord-Castle had only ever used any vehicle for such a purpose on one occasion, some five years earlier.
20. It was also a relevant factor in that case that the Deputy District Judge was able to draw an adverse inference from Mr Lord-Castle's failure to give evidence on his own account.
21. During the course of oral argument we were referred to the decision of the Court of Appeal in DPP v Hawkins [1996] RTR 160 which was mentioned by Maddison J at paragraph 15 of his Judgment. The issue in that case was whether what was undoubtedly an ambulance needed to have its blue light covered up on any occasion of private use. Unsurprisingly, the Court of Appeal, McCowan LJ presiding, held that it did not. This authority is, however, helpful to the extent that it makes clear that judicial inquiry must focus on the use of the vehicle, not on what it is being used for on a particular occasion. In that particular context, the Court of Appeal held that it was sufficient, to attract the exemption, that the ambulance was used from time to time as an emergency vehicle.

The Rival Submissions before this Court

22. Mr Simon Heptonstall for the DPP submitted that District Judge Richardson failed properly to apply the test laid down by the Divisional Court in Lord-Castle v DPP, paragraphs 14-15. The critical factual attribute of the instant case was that Hatzola Manchester only exceptionally conveyed any injured persons to hospital. The vehicles in question were not constructed (or, to the extent relevant, adapted) for that purpose, but were equipped to convey medically qualified, fast response personnel to the accident scene, and no more. Applying paragraph 14 of Lord-Castle, the defence should clearly have failed; but it also failed having regard to the list of non-exhaustive factors set out in paragraph 15, because three of those were adverse to these Respondents.
23. During the course of oral argument, Mr Heptonstall sought to reconcile Maddison J's "simple" test in paragraph 14 with the more open-textured, fact and degree test in paragraph 15. His submission was that the test has two-stages: the first stage, set out in paragraph 14, is whether the vehicle is being used for conveying the sick, injured or disabled on the particular occasion; the second stage, which only arises if it is not, is whether the primary use of the vehicle is for the purpose of such conveyance.
24. Mr Heptonstall submitted that the issue is not limited to sirens and flashing lights; it also covers speed limits (see section 87 of the Road Traffic Regulation Act 1984) and red traffic signals (see regulation 36(1)(b) of the Traffic Signs Regulations and General Directions 2002). Further, he drew our attention to the fact that section 19 of the Road Traffic Safety Act 2006 substituted a new section 87 of the 1984 Act which, amongst other things, makes provision for subordinate legislation prescribing training for those driving emergency vehicles at high speed. This was in support of a wider submission that this Court should not over-interpret the regulations in issue to achieve a just and benevolent result, but should leave such matters to Parliament.
25. Mr Paul Taylor for the respondents submitted that cases such as these must be fact-sensitive, and that the term "ambulance purposes" should bear a definition broad enough to cover "first responders" who (a) are trained paramedics, (b) use properly equipped vehicles responsibly, (c) are closely acquainted with the local geography, and (d) provide potentially life-saving treatment at the scene in advance of the advent of NHS ambulance personnel. It is also relevant, Mr Taylor submits and as District Judge Richardson found, that Hatzola has in place systems to ensure that the sirens and flashing lights are only used in emergencies. The final sentence of paragraph 14 of Lord-Castle was inapplicable in all material respects to the particular facts of the present case. Indeed, Lord-Castle should be seen as a case which turned on its own facts, the key features of which have already been mentioned. Furthermore, in his Skeleton Argument Mr Taylor offers up this paradox:-

"If the Appellant's submission is right that may create the paradox that Hatzola paramedics driving to the scene of a road traffic accident where people have been injured would be able to rely upon the exemption if they put the casualties in their vehicles and drive them to hospital without waiting for the NHS ambulance to arrive whereas the opposite would be the result if they provide potentially life-saving treatment and the NHS ambulance takes the injured person away."

26. Mr Taylor did not invite this Court to overrule Lord-Castle. He recognised that the bar against him in that respect was high, and that the practice of the Divisional Court is to follow its own previous decisions unless "clearly wrong": see R v Greater Manchester Coroner, ex parte Tal [1985] QB 67.

Analysis

27. My point of departure is to agree with Counsel in the following specific respects. First of all, I agree with Mr Taylor that the exercise is fact-sensitive and must turn on the available evidence in each case (see the first sentence of paragraph 15 of Lord-Castle), and that this Court should not be troubled with concerns about speed limits and red traffic lights in circumstances where (a) there is no evidence that his clients acted in contravention of the applicable regulatory regime, and (b) in any event, those provisions are differently worded. As McCowan LJ pointed out in DPP v Hawkins, the wording in section 87 of the Road Traffic Regulation Act 1984 includes the auxiliary "being", whereas the 1986 and 1989 Regulations contain just the participle, "used". The focus in the Regulations under current scrutiny is on the attributes of the vehicle and not on its use on any particular occasion. I also agree with Mr Taylor that the facts of Lord-Castle were a very considerable distance away from the facts of the instant appeal.
28. Secondly, I agree with Mr Heptonstall that this Court should be slow to adopt an overly purposive construction of these Regulations even if we were approaching the issue untrammelled by authority. Any broadening of the scope of the exemptions should be undertaken by Parliament. However, and putting the matter slightly differently than Mr Heptonstall, the issue is not so much the perennial fear of opening the floodgates, but rather that the Legislature is better placed than the courts to address policy considerations and the risk of creating unintended consequences.
29. Given that Mr Taylor rightly does not seek to persuade us to depart from that authority, this appeal in my view must turn on identifying the true ratio of Lord-Castle. Put another way, given that the stated basis of District Judge Richardson's decision was that "conveying medically trained personnel to the emergency scene is very much the purpose of an ambulance", the issue for this Court is whether that formulation may be reconciled with the core reasoning of Maddison J's as set out above.
30. Ascertaining the true ratio of Lord-Castle was scarcely common ground in Counsels' submissions. Both were agreed (in my view, rightly) that the terms "ambulance" and "used for ambulance purposes" were not synonymous, but there the consensus ended. In oral argument Mr Taylor relied in particular on the last sentence of paragraph 14 and the first sentence of paragraph 15 of Maddison J's Judgment. Mr Heptonstall, on the other hand, focused on the "simple" test in paragraph 14 as amplified by paragraph 15.
31. Although I agree with the direction of Mr Heptonstall's focus, I cannot agree with the manner in which he sought to marry these two paragraphs and his two-stage approach. His first stage – to ascertain what the vehicle was being used for at the relevant time – appears to my mind to commit the fallacy which McCowan LJ repudiated in DPP v Hawkins, as well as ignoring the parenthesis in paragraph 15 of Lord-Castle; and, in any event, Maddison J is laying down what he says is a "simple" test, not one which entails going through more than one stage.
32. Additionally, the identification of the test has not proven to be quite as simple as its formulation in the middle of paragraph 14 might proclaim. At first blush, that test might be said to collapse the distinction between the terms "ambulance" and "used for ambulance purposes", because a vehicle whose sole or primary use is the conveying of individuals ought to be constructed or adapted for that purpose in order to do so safely. Yet it is clear that these terms are not the same: see, for the avoidance of doubt, the separate sub-paragraphs itemised in regulation 3 of the 1986 Regulations defining "emergency vehicle", as well as the final sentence of paragraph 16 of Maddison J's Judgment. A further point is that the final sentence of paragraph 15 addresses, with respect to him, a problem which does not exist. A brand new fully-equipped ambulance falls within the definition of "ambulance" – and is therefore exempt - regardless of whether it is "used for ambulance purposes".
33. There is an additional practical concern. This Court may take judicial notice of the fact that the NHS uses "first responder" vehicles, equipped with warning sirens and flashing lights, whose purpose is to arrive at an emergency ahead of the ambulance team. These vehicles are driven by paramedics whose job it is to provide emergency assistance at the scene. They are not constructed or adapted to convey sick, injured or disabled persons, but could presumably do so in exceptional circumstances, as with Hatzola's fleet. In short, these vehicles are not "ambulances", but unless they are "used for ambulance purposes" in the context of both sets of Regulations the deployment of "blues and twos" would place their drivers in breach of the law. Mr Heptonstall recognised that his submissions achieved exactly that result, and sought to persuade us that the DPP would not seek to prosecute such cases in the public interest. He also recognised that this would not be a principled basis for differentiating the NHS first responder from the respondents in the instant appeal.
34. Having identified a series of problems, it is necessary to return to paragraphs 14 and 15 of Maddison J's Judgment. In my view, the focus must be on the core activity or raison d'être of the vehicle in question. Even if it may not be an ambulance which meets the separate regulatory definition of that term, the vehicle must at the very least be capable of conveying sick, injured or disabled persons and do so with such a frequency that this core activity may fairly and properly be designated as it primary use. The fact and degree exercise contemplated by paragraph 15 of Lord-Castle is designed to address that issue; it is not as unconstrained and freewheeling as Mr Taylor suggested. Maddison J did not specify an exhaustive list of relevant factors, but if the core activity is not the conveying of persons then the exemption cannot apply. Equally, if the core activity is the carrying of medical personnel - even trained paramedics - to the scene, then the exemption does not apply (see the final sentence of paragraph 14), notwithstanding there being some exceptional instances of conveying injured persons to hospital.
35. This approach focuses on sole or primary use, not what the vehicle was being used for on the day, save to the extent that the latter may throw light on the former. Sole or primary use is part of Maddison J's test, and must be regarded as integral to the ratio of Lord-Castle. Use from time to time, albeit relevant to the different circumstances of DPP v Hawkins, where the vehicle at issue was an ambulance, is not the test in this context. In my view, this answers Mr Taylor's paradox (see paragraph 25 above).
36. I should make clear that I would have reached the same conclusion, and with equivalent reluctance, had the issue been free from authority. This is because, looking now at sub-paragraphs (a) and (b) of the definition of "emergency vehicle" in regulation 3 of the 1986 Regulations, the term "ambulance purposes" in (a) must be read in the light of "used for such purposes" in (b), and those purposes are the "conveying [of] sick, injured or disabled persons".
37. Given that District Judge Richardson held that the core activity of these vehicles was the transport of medically trained personnel to an emergency scene and not the conveying of injured persons, it is impossible to uphold his decision in the light of Lord-Castle as correctly understood and applied.
38. That is not to say that the outcome of this appeal is desirable. Mention has already been made of NHS "first responder" vehicles. These probably did not exist when the relevant secondary legislation was made in the 1980s, and some of the terminology of the 1986 Regulations in particular harks back to an earlier age. The world has moved on, and a strong case has been made out for widening the exemption. The facts of the present case also highlight the need for reform. Hatzola is a responsible and public-spirited organisation. It uses fully-equipped vehicles. Its drivers are trained paramedics working within the bounds and responsibilities of an established system whose qualities are open to verification. Its policy is to allow conservative, restrained use of "blues and twos". Its purpose is to provide at scene paramedical assistance, in advance of the arrival of NHS paramedics, thereby potentially ameliorating the task of the ambulance crew and improving the prospects for and the prognosis of injured persons.
39. To be clear: widening the exemption to reflect the modern context is a task for the Secretary of State and for Parliament, if so advised, and not for this Court. Updating these Regulations would require not merely the overruling of Lord-Castle but the application of an overly broad, purposive construction which could not properly be achieved in view of the existing regulatory language: see paragraph 36 above.
40. Subject always to the better view of those responsible for these Regulations, at the same time as the exemption is widened by amendment to cover the NHS "first responder" vehicles currently out of scope, close consideration should be given to the position of these respondents and those like them. In short, it should not prove difficult to alight on a form of words which includes Hatzola personnel but excludes those whose purposes are not altruistic.
41. With regret, this appeal must be allowed, the answers to the questions posed by District Judge Richardson must be given in the negative, and the matter must be remitted to Bury Magistrates' Court with a direction to convict.

Lady Justice Rafferty:

42. I am grateful to Jay J for his exposition of the legal framework and its application to these facts. I add a few words in deference to the importance or potential importance of this topic, and to underscore my own reluctance to allow this appeal.
43. Medicine and medical science has advanced since the nineteen eighties. The interested bystander or curious reader would probably conclude that in 2014 casualties are more, rather than less, likely to be treated at scene, at least initially. In part, the observer might infer, this might be because paramedics are much more widely employed and deployed than was the case when these Regulations came into force.
44. Paramedics are highly trained health professionals dedicated to saving lives often in the most testing and difficult conditions. It is a matter of significant regret to me that members of Hatzola are not entitled to claim the exemption which Jay J explains. Like him, I am driven to the view that this appeal must be allowed. Like him, I am saddened that medically trained citizens seeking only to do good, part of a scrupulously professional organization with high standards and conspicuously shunning gratuitous publicity, find themselves effectively constrained in their efforts.
45. I agree with Jay J and would allow this appeal.