Ashton v Crown Prosecution Service [2005] EWHC 2729 (Admin)

Case No CO/6693/2004[2005] EWHC 2729 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 9th November 2005
Strand
London WC2
B E F O R E:
LORD JUSTICE MAURICE KAY
MR JUSTICE PENRY-DAVEY
Between
NORMAN ASHTONClaimant-v-
Between
THE CROWN PROSECUTION SERVICEDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR D WHITEHEAD (instructed by Messrs Tuckers) appeared for CLAIMANTMR E HICKEY (instructed by the Crown Prosecution Service) appeared for DEFENDANT
J U D G M E N T

LORD JUSTICE MAURICE KAY:

[1]I will ask Mr Justice Penry-Davey to give the first judgment.[2]MR JUSTICE PENRY-DAVEY: This is an appeal by way of a case stated from the decision of the Birmingham Magistrates Court on 26th February 2004. The appellant was convicted of three offences on 13th April 2003, namely:(a) using a motor vehicle fitted with a blue warning beacon, contrary to Regulation 16 of the Road Vehicle Lighting Regulations 1989, and section 42 of the Road Traffic Act 1988;(b) driving a motorcar and failing to comply with the indication given by a road signal, contrary to section 36 (1) of the Road Traffic Act 1988 and;(c) driving a motor vehicle in excess of 30 miles per hour, contrary to section 81(1) and section 89(1) of the Road Traffic Regulation Act 1984.[3]The appellant was seen at 3.30 in the morning on 13th April driving his Mitsubishi Shogun car with a flashing blue warning beacon on the roof. At the outset of the trial, he admitted that he had driven the vehicle at a speed of up to approximately 50 miles per hour on a road with a speed limit of 30, and on the same day on the same road shortly afterwards failed to comply with traffic lights whilst the lights were showing red against his vehicle.[4]The appellant's employer was a private ambulance company and the appellant was responding to a call from his employer's duty office that he was required to attend work to deal with a "retrieval", meaning that he was required to attend to drive a liveried ambulance from his place of work to retrieve a child patient. The justices were referred to Regulation 3 of the Road Vehicle Lighting Regulations 1989, which define emergency vehicle as:
"a) A vehicle used for fire brigade, ambulance or police purposes; b) An ambulance being a vehicle... which is constructed or adapted for the purposes of conveying sick, injured or disabled persons and which is used for such purposes."
They found that the Mitsubishi Shogun was not an emergency vehicle as defined, and that there was a contravention of Regulation 16 which provides:
"No vehicle, other than an emergency vehicle, shall be fitted with a) a blue warning beacon."
In the light of that finding, there was no exemption from speed limit or traffic sign compliance, and the other two convictions necessarily followed.[5]The Court is called upon to decide whether the justices were right in concluding(a) that the appellant's motor vehicle was not an "emergency vehicle"(b) that it was not an "ambulance" and(c) that the vehicle was not "adapted for the purposes of conveying sick, injured or disabled persons and used for such purposes".[6]The appellant submits that there was in fact an emergency necessitating urgent specialised medical treatment for a child patient, whose immediate collection and transportation to a specialist hospital was required. The appellant, it is submitted, had to respond quickly to that emergency and the journey from his home to hospital to collect the ambulance amounted to a response to the emergency; therefore by analogy his vehicle was one of two vehicles to be used to transport a casualty to hospital. Thus, it is submitted by Mr Whitehead, without any enthusiasm I have to add, that the private motor vehicle can be regarded as an ambulance in that it has been adapted for the purposes of conveying sick, injured or disabled persons to a place where medical treatment was to be given. There was no other reason, it is submitted, for the appellant to use his private car on that occasion.[7]In my judgment, the justices approached this matter on the correct basis by seeking to ascertain whether the appellant's vehicle came within the definition in the Regulations. Equally, I conclude that they were right in deciding in the circumstances that it was not "... a vehicle used for... ambulance... purposes" and that the appellant's vehicle did not come within the definition of:
"An ambulance being a vehicle... which is constructed or adapted for the purposes of conveying sick, injured or disabled persons and which is used for such purposes."
This vehicle was neither constructed, adapted or used for the defined purpose. In my judgment, the answer to each of the questions posed is yes.[8]The final question relates to the sentence imposed on the appellant, although it is unclear how that question came to appear in the case stated. The appellant was fined for each of the offences and ordered to pay prosecution costs. However, the justices found special reasons for not ordering endorsement of his driving licence, having regard to:(a) the time of day when the offences took place(b) the nature of the driving when approaching the traffic lights and his reduction in speed whilst so doing and(c) the overriding need to get to his place of work to collect a liveried private ambulance.[9]Although the words "special reasons" are not statutorily defined, their ruling was considered in R v Crossen [1939] 1 Northern Ireland 2006, where the Kings Bench division of Northern Ireland held that a special reason was:
"... one which is special to the facts of the particular case, that is special to the facts which constitute the offence. It is, in other words, a mitigating or extenuating circumstance not amounting in law to a defence to the charge, yet directly connected with the commission of the offence and one which the Court ought properly to take into consideration when imposing punishment. A circumstance peculiar to the offender, as distinguished from the offence, is not a special reason within the exception."
[10]In R v Wickens [1958] 42 Cr. App. R. page 236, four minimum criteria were laid down: there must be a mitigating or an extenuating circumstance not amounting in law to a defence to the charge, but directly connected with the commission of the offence and such as the Court ought properly to take into consideration when imposing sentence. It is well established that a genuine emergency may amount to a special reason, but where the situation that arises is predictable and even routine that is unlikely to constitute such special reason.[11]Returning to the special reasons found by the justices for not endorsing, the first two namely the time of day at which the offences took place and the care with which the traffic signals were approached at reduced speed, are circumstances directly connected with the commission of the offences and, in my judgment, if the appellant was driving in the context of a genuine emergency would be capable of constituting special reasons. The third, namely:
"the overriding need to get to his works depot to collect a liveried private ambulance."
Seems to be descriptive of an emergency situation, but it is difficult to distil from the stated case whether or not it was a genuine emergency.[12]Mr Whitehead has elaborated on the circumstances, albeit that they form no part of the stated case. He has indicated that it was the practice for employees of the firm concerned, the private ambulance company, to remain at home ready to be called out to go to their place of work to drive an ambulance as and when necessary, including in an emergency. If that was the situation, that does not, in my judgment, amount to a genuine emergency. It is a situation that is entirely foreseeable and even routine.[13]If the situation were otherwise, for example, that there was normally somebody on duty at the works for urgent calls to drive an ambulance, or who, for some unexpected and unforeseen reason, was not immediately able and the appellant was called out in such circumstances, or it was totally unforeseen with nobody else available and there was urgent necessity for an ambulance, that could well constitute a special reason.[14]In the light of the absence of adequate information on the facts in respect of the third reason, it would be possible for this Court to send the case back to the justices to reconsider the question of special reasons in the light of this judgment, but having heard the submissions advanced to the Court, although the answer to the final question is not a clear affirmative, I would not, in all the circumstances, be minded either to remit the issue of special reasons to the justices, nor to quash their decision not to endorse the appellant's licence.[15]I should sound this one note of reservation. This judgment should not be taken as in any way a green light to encourage the advancing of special reasons in the sort of circumstances that may have obtained in this case, which I have indicated in the course of the judgment.[16]In all the circumstances, in my judgment, the proper course would be simply to dismiss this appeal.

LORD JUSTICE MAURICE KAY: I agree. The appeal is therefore dismissed.

[18]MR HICKEY: My lords, I do have an application for costs. I have indicated to my learned friend and he agrees that the costs will not be less than £1,000. I do not know the full figure, but I apply for £1,000.

LORD JUSTICE MAURICE KAY: Yes, Mr Whitehead; what do you wish to say about (1) The order and; (2) The quantum?

[20]MR WHITEHEAD: I understand that Mr Ashton did not return to work as an ambulance driver after his conviction, I do not know his current financial position, I am afraid.

LORD JUSTICE MAURICE KAY: He was ordered by the magistrates to pay £540, or thereabouts.

[22]MR WHITEHEAD: He was and plus the fines, yes I am assuming that has been paid. I do invite your lordship perhaps to reserve costs in this case, not imposing the terms on him.

LORD JUSTICE MAURICE KAY: Is there any reason in principle why we should not make the order, whether in fact it is enforceable is something that can be canvassed elsewhere.

[24]MR WHITEHEAD: At present, no.

LORD JUSTICE MAURICE KAY:

[25]We will make the order that the appellant pay the respondents's costs in the sum of £1,000. Mr Whitehead we have a concern that I ought to raise with you, and you were very frank at the outset of this hearing and perhaps more frank than you ought to have been, as a matter of professional obligation. In a case where a view has been taken, expressed and communicated that an appeal is doomed to fail, it is a little disturbing if you are still in receipt of a representation order.[26]MR WHITEHEAD: I made it very clear to my solicitors my view in written advice and I was also surprised.

LORD JUSTICE MAURICE KAY: Representation orders in this court, as you probably know, come about in a very different way to the rest of the system. An application is made to a judge, normally the judge in charge of the Administrative Court, and he deals with it on the paper. In this case, Mr Justice Collins made a representation order on 11th January 2005.

[28]MR WHITEHEAD: Yes.

LORD JUSTICE MAURICE KAY: If the solicitors were in receipt of advice to the effect that notwithstanding it was a hopeless case, it was their duty to communicate that to the Court so the representation order could be considered because the Court does not usually continue representation orders once a view has correctly been taken that a case is hopeless.

[30]MR WHITEHEAD: I took advice myself about this point, and the advice I received was to place it in writing to those who instruct me, which I did. I was not afforded a great deal of time to prepare this case but when the skeleton was forwarded, so was the advice.

LORD JUSTICE MAURICE KAY: Is it still Tuckers in Birmingham who instruct you?

[32]MR WHITEHEAD: It is, yes.

LORD JUSTICE MAURICE KAY: Well I think what we should do is to ask the Administrative Court office to write to Tuckers with the reference that is on the appellant's notice asking for the explanation as to why they did not inform the Court of your advice; the date of which was what?

[34]MR WHITEHEAD: 18th October.

LORD JUSTICE MAURICE KAY: 18th October.

[36]MR WHITEHEAD: 2005.

LORD JUSTICE MAURICE KAY: 2005.

[38]MR WHITEHEAD: I should inform your Lordships, and may I also say this please at no stage do I wish to offer discourtesy to the Court as to my approach to this case. I simply wanted to be realistic but in no way did I mean to offer discourtesy and I hope it did not come across in that way.

LORD JUSTICE MAURICE KAY: Nobody can say you were discourteous in any way, quite the contrary. What occurred to us, when you were as frank as you were, is whether: (1) you ought to have disclosed your advice to us at that stage and; (2) whether you ought to have allowed yourself to remain in a position where you were advancing an argument which you thought was bad in law.

[40]MR WHITEHEAD: Hence the shortness of my skeleton.

LORD JUSTICE MAURICE KAY: There we are. Very well, thank you both very much.