CO/13619/2009 
Neutral Citation Number: [2010] EWHC 289 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Tuesday, 19 January 2010
 
B e f o r e:

LORD JUSTICE SULLIVAN

MR JUSTICE LLOYD JONES
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Between: 
VEHICLE AND OPERATOR SERVICES AGENCY 
Claimant

v 

CLAYTON 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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MR K BARKER (instructed by HUGH JAMES SOLICITORS) appeared on behalf of the Claimant
MR J CLAYTON appeared in person
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J U D G M E N T
1.	MR JUSTICE LLOYD JONES:  This is an appeal by Case Stated against a decision of the North Avon Magistrates' Court on 14 August 2009 dismissing an information that on 17 October 2008, on the A46 at Tormarton, the respondent, Mr John Roger Clayton, unlawfully used a goods vehicle on a road for the carriage of goods for or in connection with a trade or business carried on by him, when he was not the holder of an operator's licence, contrary to section 2(1)(b) and section 2(5) of the Goods Vehicles (Licencing of Operators) Act 1995.  The magistrates' found that Mr Clayton was the owner and driver of a 7.5 tonne HGV, and that on 17 October 2008, he was transporting his horses and a horse‑drawn hearse in the back of the lorry on his way to undertaking a funeral.  He was travelling from his home in Northampton to Bristol where the funeral was to take place.  It was agreed that the coffin was not being carried at the time the vehicle was stopped, and it was agreed that Mr Clayton was driving the vehicle in the course of his business.   
2.	Mr Clayton accepted that he was not in possession of an Operator's Licence for this activity and he told the traffic examiner on being stopped that he thought the vehicle was exempt.  That is a matter to which I shall return.  The magistrates found that the lorry was clearly liveried to show the owner's business within the funeral sector, and accepted that this lorry had been purpose built for carrying the hearse and the horses.  The relevant statutory provisions are contained, first, in section 2 of the Goods Vehicles (Licencing of Operators) Act 1995:
"2 Obligation to hold operator’s licence.
 (1) Subject to subsection (2) and section 4, no person shall use a goods vehicle on a road for the carriage of goods— 
(a) for hire or reward, or 
(b) for or in connection with any trade or business carried on by him except under a licence issued under this Act; and in this Act such a licence is referred to as an “operator’s licence”.
 (2) Subsection (1) does not apply to— 
(a) the use of a small goods vehicle within the meaning given in Schedule 1;
...
(d) the use of a vehicle of any class specified in regulations."
3.	The definition of a small goods vehicle is to be found in schedule 1.  For present purposes it is sufficient to note that a vehicle has to exceed 3.5 tonnes in weight if it is to fall outside that category of exemption created by section 2(2)(a).  The classes of vehicles for which a licence is not required are set out in schedule 3 to the Goods Vehicles (Licencing of Operators) Regulations 1995, and paragraph 5 of part 1 of that schedule exempts "a vehicle which is being used for funerals".
4.	Before the magistrates, it was submitted on behalf of the Vehicle and Operator Services Agency ("the agency") that the exemption in paragraph 5 did not apply, as the section applied only to vehicles being used for funerals and not to vehicles which in turn are carrying funeral vehicles.  It was contended that paragraph 5 should not be given an interpretation wider than the words which that part of the schedule themselves suggested.  On behalf of Mr Clayton, it was submitted that, at the time and location at which he was stopped, the vehicle was indeed being used for a funeral and that therefore it was exempt under paragraph 5.  
5.	Mr Clayton gave evidence that he was on his way to Bristol to take part in a funeral and that this vehicle is only used for funerals.  He stated that he would only allow his horses to pull the hearse for a maximum of 6 miles and that, having been in the funeral business for 25 years performing his duties all over the country, the use of this lorry had to be seen as part of the funeral.  Mr Clayton said that on occasions his horses had pulled his hearse at the start of the funeral procession and had then been loaded into the lorry and driven on to a location where the horses were unloaded so that they might complete the procession.  He accepted that that was not the arrangement which was to be followed on 17 October 2008.  However, it was also his uncontested evidence that, on all other occasions when the horses were to draw the hearse the entire route of the funeral procession, the lorry would travel at the rear of the cortege for safety reasons, the lorry carrying an extra groom, spare parts and harness, and a first aid box in case of emergencies.
6.	The magistrates concluded that Mr Clayton had satisfied them that the exemption under paragraph 5 did apply in his case, and that the lorry was, on the occasion in question, being used for funerals.  The magistrates found that the use of the lorry was an integral part of the funeral, as without the ability to transport the horses to the vicinity of the funeral it would not be possible for the funeral to take place in accordance with the wishes of the family of the deceased.  They also found that the lorry was specially adapted for this role and accepted Mr Clayton's evidence that the lorry was used solely to transport the horses and hearse to funerals.  
7.	The agency has asked the magistrates to state a case to permit an appeal to be made to this court.  The agency has made clear that it brings this appeal solely in order to clarify the law.  In the event that the appeal is allowed, it does not seek the remission of the case to the Magistrates' Court.  The magistrates have stated the following question:
"Was the court right to find that a vehicle used solely to carry a hearse carriage and horses which were to be used in a funeral procession was, of itself, a vehicle which is being used for funerals, and therefore within the exemption contained at schedule 3(5) of the Goods Vehicle (Licensing of Operators) Regulations 1995?"  
8.	Before us the Agency has been represented by Mr Barker, and Mr Clayton has appeared in person.  Mr Clayton has made very helpful submissions and we have also had the benefit of written submissions prepared in advance by Mr Clayton.  The sole question for consideration by this court is whether on the facts, which are not in dispute, this vehicle was being used for funerals when it was stopped on that occasion on the A46.  It was common ground, both below and before this court, that the burden of proving that the exemption applies lies on the defendant who contends that the vehicle is exempt (Gaunt v Nelson [1987] RTR 1).  
9.	The words "being used for funerals" are capable of bearing a range of meanings of varying width.  It is therefore necessary to have regard to the object and purpose of the legislation which requires the licensing of operators of heavy goods vehicles.  I take this to be the need to protect other road users by preventing road accidents.  To my mind, this requires a narrower construction of the words "creating the exemption" than might be possible in other circumstances.  This approach accords with that adopted by the House of Lords in Vehicle Inspectorate v Bruce Cook Road Planing Limited [1999] 1 WLR 1907.  In that case, a driver employed by the defendant company drove on a public road the defendant's tipper lorry with a trailer attached, the trailer carrying a road planing machine, without a tachograph being installed in the tipper lorry.  The prosecution was concerned with different legislation from that with which we are concerned with in this case.  The exemption which was relied on in that case was an exemption in the case of the use of the vehicle "in connection with ... highway maintenance and control".  The magistrates held that the lorry was being used in connection with highway maintenance and control; that decision was reversed by the Divisional Court whose decision was upheld by the House of Lords.  I note that the linking words, "in connection with", are potentially wider than the linking words in the exemption with which we are concerned in the present case, and that therefore, as Mr Barker submits on behalf of the Agency, the decision in Bruce Cook may be considered an a fortiori case.
10.	Lord Clyde observed at page 1917:
"A remote connection will not meet the requirement that the purpose of the Regulation must be secured.  There must be close connection, but the language of remoteness or closeness is not of immense assistance, except as an indication that in some cases the eventual solution may require to rest upon an assessment of the particular facts." 
11.	In this case, the schedule to the Regulations sets out some 29 classes of exempt vehicles.  Some of those classes are defined solely by reference to the character of the vehicle, for example, at paragraph 18, "a steam propelled vehicle"; paragraph 21, "an electrically propelled vehicle".  Other exemptions depend on the user of the vehicle, for example, 16, "a vehicle while being used by a local authority for the purposes of enactments relating to weights and measures or the sale of food or drugs".  Others depend on where the vehicle is used, for example paragraph 20, "a vehicle while being used for the carriage of goods within an aerodrome".  Other classes, including that with which we are concerned in this case, are defined by reference to the use which is made of them.  It appears therefore that the user of a vehicle would need a licence for the vehicle when it is used for certain purposes but not when it is used for others.  Even within such cases, we see that there is no consistency of drafting: paragraph 5 refers to "a vehicle which is being used for funerals", at paragraph 16 we see a reference to "a vehicle while being used by a local authority" for certain purposes.  Similar words are used in paragraph 17 and in paragraph 20.  
12.	Mr Clayton draws attention to the fact that he carries on the business of providing a horse‑drawn hearse for funerals.  It is not in dispute that he was using the vehicle on the occasion in question in the course of that business.  He also points to the fact that the vehicle which he was using had been purpose built for carrying a horse‑drawn hearse, and it had been purpose built to carry the horses to pull the hearse.  It is used exclusively for the purpose of Mr Clayton's participation in funerals.  We have been shown the photographs which were before the magistrates and it can be seen that the vehicle has a distinctive get up showing a picture of the horse‑drawn hearse and referring to horse‑drawn funerals.  
13.	On behalf of the Agency it is submitted that in the present case the vehicle was being used to transport the hearse and the horses to a funeral, but it was not being used for a funeral.  I have come to the conclusion that this submission is correct and that the use falls outside the exemption created in paragraph 5.  
14.	Mr Clayton plays his part in a funeral by driving the heavy goods vehicle to the location of the funeral.  The horse‑drawn hearse is then used in the procession.  I have explained that in some cases, where a distance of greater than 6 miles is involved, the horse‑drawn hearse bearing the coffin is loaded into the lorry and is taken some of the way to the final destination.  In all other cases where that is not necessary, the HGV is used to follow the procession, no doubt at a discreet distance in case there is any problem with the horse‑drawn hearse.  
15.	I would readily accept that the use of the HGV at and between the various locations of the funeral, is used for a funeral.  Indeed, that was accepted by Mr Barker in his helpful submissions on behalf of the Agency.  However, the use of the HGV to transport the hearse and the horses to the location of the funeral seems to me to be too remote.  The journey to the funeral may be over long distances, as Mr Clayton undertakes funerals in different parts of the country.  The journey being undertaken on this occasion was from Northamptonshire to Bristol, although it is right to say that Mr Clayton has pointed out it was rather longer than the distances that he normally travels for this purpose.  This use seems to me to be indistinguishable from the carriage of goods by road in general, and does not justify any exemption from the rules generally applicable to such carriage.  To my mind, it is too remote from the funeral to fall within the exemption.  
16.	Moreover, in this regard, I note that another exemption within schedule 3 is in the following terms:
"28)  A vehicle which is being used for snow‑clearing or for the distribution of grit, salt or other materials on frosted, ice‑bound or snow covered roads, or for going to or from the place where it is to be used for the said purposes, or for any other purpose directly connected with those purposes".  
The fact that in that exception the transport to and from the particular location where a vehicle is to be used in a particular way is expressly provided for, suggests that the lack of such a provision in the case of paragraph 5 indicates that paragraph 5 should have a considerably more limited meaning and should not apply to such transport to and from the funeral.  
17.	I am supported in my conclusion by the reasoning of the House of Lords in Cook, in particular, by Lord Hope at page 1915 A, where he distinguishes between the movement of the road maintenance vehicles, with which they were concerned in that case, to and from the site in the course of a day's work, and the use of vehicles for transporting road maintenance vehicles from one site to another prior to the commencement of the works.  Lord Hope observed that the transportation of equipment to or from the site may be over long distances, may take place before the works have begun on site, or after they have been completed.  The purpose of using the vehicle which is being used to move the equipment is simply that of transportation, and in his view, such use is indistinguishable from the business of transporting equipment by road hauliers who are in business as such, not as the providers of highway maintenance services.  
18.	Similarly, Lord Clyde at page 1918 A observed that in that case the court was concerned with the carriage of a very substantial machine in the course of a journey of quite considerable length.  At the time in question the vehicle was engaged solely in the operation of the carriage of the machine.  The use of a vehicle to carry a substantial machine to a site with the intention that, at that site, it might be put to use for the purpose of road maintenance work, seemed to him, at least as a matter of generality, too remote a use to qualify as a use in connection with road maintenance.  
19.	This conclusion is also supported by the decision of this court in Lewis v Moss.  There, a lorry was carrying a line‑marker machine to the site of road line marker operations, with which the lorry worked in conjunction with the machine after the machine was unloaded.  The question was whether this was in connection with highway maintenance within Article 4(1) of Council Regulation EEC 3820/85.  This court held that the derogations were to be strictly interpreted, and that during the 35 mile journey to the site, the vehicle was not involved in highway maintenance or control, but in the transportation of the machine to the site where, after unloading, and in conjunction with the line‑marking machine, it would have been so used.  However, that stage had not been reached on the journey to the site.  
20.	I must confess that I have been a little perplexed by the fact that the question of whether this exemption applies arises only if the vehicle exceeds 3 and a half tonnes in weight, as this vehicle does.  If it weighs less than 3 and a half tonnes, it is exempt as a small goods vehicle by virtue of section 2(2)(a).  The present, somewhat unusual circumstances apart, I find it very difficult to imagine circumstances in which a heavy goods vehicle may sensibly be used for funerals.  However, the exemption created by paragraph 5 of schedule 3, must be given some effect.  This might be seen to support the case for Mr Clayton.  However, to my mind, the use of a heavy goods vehicle to follow a procession, or to transfer the hearse bearing the coffin from one location to another during the funeral would be such a use.  Unusual as it is, this does permit meaning to be given to the exemption without accepting that transporting the hearse and horses to the funeral is use for the funeral, a reading which I am unable to reconcile with the purpose of the statutory scheme.  
21.	Finally, I should like to emphasise that the conclusion I have come to on this appeal does not reflect badly on Mr Clayton in any way.  Mr Clayton has tried for many years to find out about the scope of this exemption.  He tells us that, despite enquiries, nobody from the Agency could tell him.  The purpose of this appeal is simply the clarification of the law.  The Agency is not asking for this matter to be remitted to the Magistrates' Court, quite rightly in my opinion.  It will, of course, now be open to Mr Clayton to apply for the appropriate operator's licence if he so wishes.  
22.	Accordingly, turning to the question posed in the Case Stated, I would answer the question as follows: the court erred in law in concluding that a vehicle used solely to carry a hearse carriage and horses, which were to be used in a funeral procession, was of itself "a vehicle which is being used for funerals", and therefore within the exemption contain in schedule 3, paragraph 5 of the Goods Vehicle (Licencing of Operators) Regulations 1995.  However, I would emphasise that this is a conclusion which turns on the particular facts of this case.
23.	LORD JUSTICE SULLIVAN:  I agree.  I particularly associate myself with my Lord's observation that the outcome of this appeal does not reflect badly in anyway upon Mr Clayton who has behaved entirely properly throughout.  
24.	Other than answering "no" to the question posed by the justices, we make no further order.
25.	MR BARKER:  My Lord, the Agency, in my judgment, is a public body within the terms of the Prosecution Offences Act, so I cannot ask for costs out of central funds and we do not seek costs from Mr Clayton.
26.	LORD JUSTICE SULLIVAN:  That is very proper, if I may say so.  
27.	So, Mr Clayton, you have got your answer at last.  You might not like the answer but it is not going back to the magistrates and you are not having to pay the costs of this.  
28.	Thank you very much indeed.  Thank you for your help.