Many of us will have suffered the unpleasant experience of having a ‘notice of intended prosecution’ land on our doorstep. This correspondence issued by the police notifies a driver or registered keeper of the potential commissioning of a motoring offence.
Thankfully, the law recognises that errors are sometimes made and allows some leeway for the commission of motoring infringements before a driver loses their all important licence. Presently, a driver is permitted to accumulate a maximum of 12 penalty points within a 3 year period before facing a mandatory disqualification. However, in the unfortunate event that a driver does receive 12 penalty points what is likely to happen?
When a driver is at risk of disqualification, they will usually be summonsed to court for a hearing where the matter will be considered.
For those that do attend the inevitable hearing, the law is quite tough on drivers who frequently break the rules. The minimum periods of disqualification for those who reach 12 points are:-
- 6 months if no previous disqualification is taken into account.
- 12 months if one previous disqualification is taken into account.
- 24 months if more than one previous disqualification is taken into account.
A previous disqualification is to be taken into account if it is not less than 56 days and imposed within the three years immediately preceding the date on which the current offence (or most recent of the current offences) was committed.
Fortunately, the Court recognises that, even in the case of repeat offenders, there may be exceptional circumstances (usually referred to as exceptional hardship) which would mean that a mandatory disqualification would be inappropriate. The criteria that the Court can, and cannot, take into account when deciding if exceptional hardship would be caused by a ban are quite specific. For example, the Court must not take into account.
- Any circumstances that it is argued make the offence not serious (for instance, a quiet road, only being a few mph above the limit or a genuine error as to the limit in force).
- Hardship other than exceptional hardship. This means that someone’s life would be made more difficult from a loss of licence. The consequences must be exceptional to be taken into consideration.
- Any circumstance which, within the three years immediately preceding the conviction, have been taken into account to reduce or avoid a totting up disqualification. This means that if someone has argued exceptional hardship before they cannot raise this again for a considerable period.
When considering whether there are grounds to reduce or avoid a totting up disqualification the Court should have regard to the following:
- It is for the offender to prove to the civil standard of proof (the balance of probabilities/more likely than not) that such grounds exist. This will normally require evidence under oath from the person concerned.
- Where it is asserted that hardship would be caused, the court must be satisfied that it is not merely inconvenience, or hardship, but exceptional hardship for which the court must have evidence.
- Almost every disqualification entails hardship for the person disqualified and their immediate family. This is part of the deterrent objective of the provisions combined with the preventative effect of the order not to drive.
- If a motorist continues to offend after becoming aware of the risk to their licence of further penalty points, the court can take this circumstance into account.
- Courts should be cautious before accepting assertions of exceptional hardship without evidence that alternatives (including means of transport) for avoiding exceptional hardship are not viable.
- Loss of employment will be an inevitable consequence of a driving ban for many people. Evidence that loss of employment would follow from disqualification is not in itself sufficient to demonstrate exceptional hardship. Whether or not it does will depend on the circumstances of the offender and the consequences of that loss of employment on the offender and/or others.
Therefore, whilst a safeguard does exist to prevent extreme hardship being caused as a consequence of a driving disqualification it is not to be applied easily or without careful consideration of the facts in any given case. Accordingly, it is crucial that a driver who wishes to argue exceptional hardship prepares properly for a hearing and has an understanding of what the court will, and will not take into account.
If you find yourself at risk of a totting based disqualification we can assist with the preparation of an exceptional hardship argument to offer the best chance of preserving your licence at Court.