Neutral Citation Number: [2009] EWHC 87 (QB)
Case No: CO/7500/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 23/01/2009

Before :

LORD JUSTICE SCOTT BAKER
MR JUSTICE MADDISON
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Between :

	MICHAEL LORD-CASTLE	Appellant	
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	DIRECTOR OF PUBLIC PROSECUTIONS	Respondent	

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Philip Rule, Castle Chambers  (instructed by Elin & Co.) for the Claimant
Ethu Crorie (instructed by CPS Hampshire) for the Defendant

Hearing date: 3rd December 2008
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Judgment

Mr Justice Maddison : 

1.	This is an appeal by Michael Lord-Castle by way of case stated from the decision of Deputy District Judge Davidson (“Mr Davidson”) at Aldershot Magistrates’ Court on 1st February 2008 to convict him of using a motor vehicle fitted with a siren, contrary to regulation 37(4) of the Road Vehicles (Construction and Use Regulations) 1986 (“the 1986 Regulations”) and s.42 of the Road Traffic Act, 1988. I will refer to this for short as “the siren charge”. 
2.	Before the same court, Mr Lord-Castle also faced a charge of using a vehicle fitted with a blue warning beacon, contrary to regulation 16 of the Road Vehicles Lighting Regulations, 1989 (“the 1989 Regulations”) and s.42 of the Road Traffic Act, 1988.  I will refer to this for short as “the beacon charge”.  He was acquitted of that charge.
3.	Regulation 37 (4) of the 1986 Regulations, provides, so far as it is material, that “subject to paragraph (5)….. no motor vehicle shall be fitted with a ….. siren”….  ).  Regulation 37 (5) provides, so far as it is material, that “the provisions of paragraph (4) shall not apply to motor vehicles (a) used for …. … ambulance purposes ….”.  Since regulation 37 (5) of the 1986 Regulations provides an exception to Regulation 37 (4), it is appropriate to refer also to s.101 of the Magistrates’ Courts Act 1981.  This provides as follows: 
“Where the defendant to an information or complaint relies for his defence on any exception, exemption, proviso, excuse or qualification, whether or not it accompanies the description of the offence or matter of complaint in the enactment creating the offence or on which the complaint is founded, the burden of proving the exception, exemption, proviso, excuse or qualification shall be on him; and this notwithstanding that the information or complaint contains an allegation negativing the exception, exemption, proviso, excuse or qualification”.
 It has not been disputed that the effect of this provision was to impose on Mr Lord-Castle the burden of proving, on the balance of probabilities, that the vehicle concerned was “used for ambulance purposes” and was therefore lawfully fitted with a siren.  
4.	Mr Lord-Castle was stopped by a police officer on 30th April 2006 driving a BMW motor car. It was a 5 series two-door saloon model.  It was fitted with red and blue strobe lights to the front and rear and with a siren.  These were connected to a power supply but not actually operating when the car was stopped. There was also a blue warning beacon in the boot, but this was not connected to any power supply.  In the body of the car were discovered, amongst other things, a two-way radio, radio scanners and a frequency scanner.  In the boot, in addition to the blue beacon, were found two yellow and green florescent jackets.  Each had a badge on one of the sleeves bearing the words “London Ambulance Donor Services” and a badge on the back bearing the words “Ambulance Search and Rescue”.  A larger badge on the back of one of the jackets read “Pilot” and on the other jacket, “Aircrew”.   Also in the boot were a first aid case containing dressings, plasters, bandages and scissors;  a fire extinguisher; one neck collar; a hand-held ventilator which from photographs shown to Mr Davidson and to this court appears to have been unsealed and therefore un-sterile; a coil of tape; some blankets; a road flare; a rope; and small ladder.
5.	Mr Lord-Castle was interviewed at some length on the following day, 1st May.  What follows is intended only as a brief summary. He said that he worked for the London Ambulance Donor Service, an organisation which had been in existence for about 20 years.  This used to be a charity, but was now a non-profit making business.  Asked who worked with him in this organisation he named Dave West and John Taverner but was not able to provide contact details for either of them.  “Dave West” appears to be a reference to David Weston to whom I will refer later in this judgment.  Mr Lord-Castle accepted that he had been driving the BMW on 30th April.  He said that the vehicle had a siren, amongst other equipment, because it 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 necessary.  He might also be called to attend the scene of an accident by associates of his who happened to have seen the accident.  He would not, however, be called to accident scenes by any ambulance control rooms.  When he arrived at an accident scene he would make sure that the area was safe, ring the emergency services if this had not already been done, and keep the injured party or parties alive until the arrival of a paramedic, who would usually be better equipped.  He had attended about 8 accidents in this way so far in 2006.  He claimed to have received training and obtained qualifications in the required skills, but was not prepared to discuss his qualifications in detail during the interview.  In previous times he had carried body parts and donor organs in vehicles he had driven, but that had last happened “quite some time ago”.  Asked if he had ever taken an injured person away from the scene of an accident, he said that he had done so only once, about 5 years previously. He said that the BMW had not been adapted to carry injured persons on a stretcher, though it was capable of transporting people to and from hospital.  He agreed that he did not carry any defibrillation equipment and that if the neck collar that he carried did not fit the injured party, he would have to wait for a NHS ambulance to arrive.  He had no formal contact with any organisation in relation to what he did.  He disagreed that he was doing no more than a member of the public might do on seeing an accident.   He said that on the previous day when he was stopped by the police he had been taking a day off from his duties in relation to accidents, adding that the organisation for which he worked was becoming more involved in bio-terrorism and less in attending accident scenes.
6.	Mr Lord-Castle’s trial took place on 22nd and 24th January and 1st February 2008.  The only two prosecution witnesses were police constable Thomas who had stopped Mr Lord-Castle on 30th April 2006, examined the BMW vehicle and its contents and interviewed Mr Lord-Castle on 1st May 2006; and Mr Keith Boyes of the South Central Ambulance Service, who confirmed that no less than 1,200 volunteers provided medical support services using their own cars in his area alone.
7.	At the close of the prosecution case Mr Rule, Counsel for Mr Lord-Castle, successfully submitted that there was no case to answer on the beacon charge on the grounds that the beacon in the boot was not connected to a power source and that the strobe lights did not fall within the definition of a beacon in the 1989 Regulations.  Mr Rule also submitted that there was no case to answer on the siren charge.  Mr Davidson took into account the evidence of P.C. Thomas and Mr Boyes together with Mr Lord-Castle’s police interviews  which Mr Davidson rightly considered to be “mixed statements” and thus to have evidential status (see e.g. R. v. Aziz [1996] 1A.C. 41).  He rejected the submission of no case.
8.	Mr Lord-Castle did not give evidence himself, but he called 8 witnesses, and the statements of two further defence witnesses were read.  Of these witnesses, it is necessary to refer only to two.  Mr Donald Williams said that he was the founder and president of the British Ambulance Association, which Mr Lord-Castle had joined three years ago.  He said that ambulances were not presently subject to any statutory regulation; that he had his own private ambulance service; and that he had in the past seen medical equipment in the boot of Mr Lord-Castle’s car far in excess of that normally carried in  private or indeed NHS ambulances.  He also expressed the view that the equipment in the BMW on 30th April 2006 was “suitable for coming across accidents” to quote from the case stated.  Another witness, David Weston gave detailed evidence about the ways in which he had converted the BMW for use as an ambulance, including the provision of tubing for oxygen cylinders to be fitted in the boot, and the preparation of harnesses to secure a stretcher. 
9.	Mr Davidson found Mr Williams an unimpressive witness, and rejected his evidence.  He concluded that the BMW did not normally carry any more medical equipment than that actually in the vehicle on 30th April 2006.  I now consider Mr Weston.  In his Case Stated, Mr Davidson does not say in terms that he rejected Mr Weston’s evidence, but he appears to have done so, having regard to the contrary evidence in the form of Mr Lord-Castle’s statement in interview that the vehicle had not been adapted to carry stretchers, and to the absence of any oxygen cylinders or indeed of any stretcher in the BMW.  Mr Davidson also drew an adverse inference pursuant to s.35 of the Criminal Justice and Public Order Act, 1994 arising out of Mr Lord-Castle’s failure to give evidence on oath at the trial.  
10.	Mr Davidson observed that it was undisputed that the BMW had been fitted with a siren, and concluded that Mr Lord-Castle had failed to discharge the burden of proving on the balance of probabilities that the BMW was a vehicle “used for ambulance purposes”, and thus entitled to be fitted with a siren.  He therefore convicted Mr Lord-Castle of the siren charge.  Having done so, Mr Davidson was invited by the prosecution to order that Mr Lord-Castle should pay the prosecution’s costs in the sum of £790, but Mr Davidson decided to limit the order for costs to £400.  He noted that Mr Lord-Castle had originally faced proceedings in relation to two alleged offences on 10th January, 2006, which had been discontinued because the charges were laid out of time; and that Mr Lord-Castle had been convicted of only one of the two charges relating to 30th April, 2006. 
11.	This court is now called upon to answer 6 questions posed by Mr Davidson in his Case Stated.  I propose to deal first with what  I would regard as the most important question, namely whether Mr Davidson applied the right test when determining whether or not the BMW was a vehicle “used for ambulance purposes” within regulation 37(5) of the 1986 Regulations.
12.	I begin by considering  the provisions of the 1986 and 1989 Regulations to which we were referred in this regard.  The 1986 Regulations do not provide a definition of “ambulance” or “vehicle used for ambulance purposes”.  However, in the Table forming part of Regulation 3 of the 1986 Regulations a  “motor ambulance” is defined as 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.” The 1989 Regulations do provide a definition of “ambulance” but not of a “vehicle used for ambulance purposes”. The Table forming part of regulation 3 of the 1989 Regulations defines “emergency vehicle” as including amongst other things, “(a) a vehicle used for ….ambulance purposes” and “(b) an ambulance, being a vehicle …… constructed for the purposes of conveying sick, injured or disabled persons and which is used for such purposes”.
13.	Mr Davidson did not find such provisions helpful, but I regard the definitions to which I have referred as helpful in different respects.  True it is that they do not define “for ambulance purposes” and do not assist in arriving at a definition of “ambulance” which could be of general application. The definitions of “motor ambulance” in the 1986 Regulations and “ambulance” in the 1989 Regulations differ to some extent, though both focus on the mode of construction of the vehicle concerned.  However, the 1986 and 1989 Regulations do provide support for the proposition, which I regard as clear in any event, that a vehicle may be “used for ambulance purposes” whether or not it is actually an “ambulance” however that word is defined.  Regulations 37(4) and (5) of the 1986 Regulations do not require that the vehicle concerned should be an ambulance as long as it is “used for ambulance purposes”.  It is therefore unnecessary in my view to attempt a definition of “ambulance” for the purposes of this case, even though Mr Davidson did so. 
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 an 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. 
16.	The definition of a “vehicle used for ambulance purposes” adopted by Mr Davidson was a vehicle which (1) was constructed or adapted so that injured or sick persons could be safely transported to a hospital for treatment; (2) had suitable medical equipment so that patients could be stabilised at the scene or during transportation to hospital; (3) contained personnel who were suitably qualified to care for and move injured or sick persons by stretcher before and during transportation to hospital; and (4) was driven by a person with advanced driving skills.  In my judgment, Mr Davidson fell into error in this regard.  The effect of paragraphs (1) and (2) of his definition would be to exclude most if not all vehicles unless they were actually ambulances; and paragraphs (2), (3) and (4) would include as legal requirements features which might properly be taken into account, amongst others, in deciding whether or not a particular vehicle was “used for ambulance purposes” but none of which would be determinative of that question.  
17.	The remaining questions for the consideration of this court can be answered in the order in which they arose at the trial, and comparatively shortly.  The second question raised is whether or not Mr Davidson was right to reject the submission of no case to answer in relation to the siren charge.  For the reasons already explained, Mr Davidson did not apply the correct test for determining whether the BMW was “used for ambulance purposes”; but in my judgment he would have inevitably reached the same conclusion had he applied the correct test.  At the end of the prosecution case there was undisputed evidence that Mr Lord-Castle was using a vehicle which was fitted with a siren.  The offence was therefore made out unless he could establish on the balance of probabilities that the BMW was “used for ambulance purposes”.  At that stage of the proceedings the only evidence before Mr Davidson relevant to that issue concerned the circumstances in which Mr Lord-Castle was stopped and spoken to by police constable Thomas; the condition of and the equipment carried in the BMW; and the un-sworn evidence in the form of Mr Lord-Castle’s police interviews.  Taken together, these sources of evidence showed that Mr Lord-Castle was using the BMW as a private car at the relevant time (though, for the reasons explained earlier, this was not determinative); that the BMW was not adapted to carry a casualty on a stretcher (even though, like any car, it would transport people to hospital); and that the medical equipment in the BMW did not include defibrillation equipment, oxygen cylinders, an adjustable supportive neck collar or a stretcher.  Moreover, there was no evidence that the BMW had ever actually been used to transport a sick, injured or disabled person (it being conceded before this court, incidentally, that the BMW had in fact never been used for such a purpose); and there was evidence that Mr Lord-Castle had only ever used any vehicle for such a purpose on one occasion, some 5 years earlier. In these circumstances, Mr Davidson was right in my judgment to reject the submission of no case to answer in relation to the siren charge.  
18.	The third question raised is whether or not Mr Davidson was right, when deciding whether or not to convict Mr Lord-Castle, to draw an adverse inference against him because he had not given evidence, pursuant to s.35 of the Criminal Justice and Public Order Act, 1994. This was a case in which, for the reasons given earlier in this judgment, the evidence adduced by the prosecution clearly constituted a case to answer.  Mr Lord-Castle had given an account in interview, but it did not amount to an answer to the charge, it was not given on oath it was not therefore one on which he could be cross-examined.  Mr Davidson concluded that the only reason Mr Lord-Castle did not give evidence was that the account he had given in interview would not bear examination if he did.  It is clear from his Case Stated that Mr Davidson appreciated the court cannot convict wholly or mainly on the basis of such an adverse inference.  He correctly applied the relevant legal tests, and Mr Lord-Castle in my judgment falls far short of showing that Mr Davidson’s decision to draw an adverse inference involved any error of the law or was “Wednesbury” unreasonable. 
19.	The fourth question this court is asked to consider is whether or not it was open to Mr Davidson to reject the evidence of the defence witness Mr Williams  about the extent of the equipment he had seen in the boot of Mr Lord-Castle’s car (see paragraph 8 above).  This seems to me to raise questions of fact rather than of law, but the matter having been raised I will deal with it briefly. To begin with, it would appear from the Case Stated that although Mr Williams said that he had previously seen equipment in the BMW that was sufficient for ambulance purposes, he described the equipment in the car on 30th April 2006 only as “suitable for coming across accidents”.  In any event, Mr Davidson saw and was well placed to assess Mr Williams as a witness. He was entitled to take into account the nature of the equipment actually in the BMW when it was stopped. He was entitled to reject the evidence of Mr Williams, and to conclude that the BMW did not normally carry any more medical equipment than it was carrying on 30th April.  No error of law arises in this regard, neither was Mr Davidson’s decision to reject Mr William’s evidence one that no reasonable tribunal could have taken.
20.	Mr Davidson asks fifthly whether he correctly understood the passages of Mr Lord-Castle’s interview which he regarded as contradicting the evidence of Mr Weston (see paragraph 8 above); and, if so, whether he was right in so regarding them.  Again this question seems to me to be one of fact rather than law, but again the matter having been raised I will deal with it briefly. I would answer both questions in the affirmative.  During the second part of his interview, beginning at 13.24 on 1st May, 2006 Mr Lord-Castle was asked “but your vehicle hasn’t been adapted to carry injured persons as such has it?” and he replied “… it’s not a vehicle that can have the seats taken out and stretchers put in there, no.”  Nothing in the remainder of the interview was to contrary effect, even though Mr Lord-Castle went on to make the obvious point that the BMW was capable of transporting people from an accident to a hospital.  In my judgment Mr Davidson was entitled to take into account his correct understanding of the effect of the interviews on this subject when considering the evidence of Mr Weston.  He was also entitled to take into account the absence of any stretcher in the BMW.  No error of law arises out of his decisions in this regard, neither were any of those decisions “Wednesbury” unreasonable.  
21.	Finally, this court is asked to consider whether or not Mr Davidson was entitled to make the order costs that he did.  In my judgment, having regard to the history and outcome of the proceedings, the order that he made was well within the proper ambit of his discretion.  Proceedings relating to the alleged offences of 10th January, 2006 were discontinued long before the trial started, and the trial itself was not significantly lengthened by the inclusion of the charge relating to the beacon that was dismissed. No error of law or question of “Wednesbury” unreasonableness arises in this regard.
22.	For these reasons I would dismiss this appeal.  In the exercise of the discretion of this court I would, however, grant Mr Lord-Castle’s application for a defendant’s costs order since, despite the outcome, he did succeed in his argument on what in my view was the most significant point in the appeal, namely whether or not Mr Davidson’s approach to the meaning of a “vehicle used for ambulance purposes” was correct. 
23.	Scott Baker LJ: I agree