Nockolds Solicitors recently acted for a driver at Southend Magistrates Court who retained his licence despite collecting fourteen points on his driving record. The driver had nine existing points and pleaded guilty to a speeding offence, resulting in a further five points. The court found he would suffer ‘exceptional hardship’ if disqualified and allowed him to continue driving.
The Law – 12 Penalty Points or More
Under section 35 of the Road Traffic Offenders Act 1988, drivers who accumulate 12 or more penalty points within three years are liable to a mandatory disqualification for at least six months. This is commonly known as ‘totting up’.
A driver can avoid a totting up disqualification where the court is:
“Satisfied, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction…”
In deciding whether mitigating circumstances are present, the following are irrelevant:
- Circumstances that are alleged to make the offence or any of offences not a serious one
- Hardship, other than exceptional hardship.
If the Magistrates find that there are mitigating circumstances they can either order the driver to disqualified for a shorter period or avoid imposing any disqualification.
Persuading the Court that there are Mitigating Factors
The court must be persuaded of the presence of mitigating circumstances which amount to ‘exceptional hardship.’
There is no definition as to what amounts to ‘exceptional hardship’; it is a matter of fact and degree in each case. Every disqualification will cause some degree of hardship. The burden is on the driver to satisfy the court that ‘exceptional hardship’ other than ordinary hardship exists.
‘Exceptional hardship’, is not limited to the effect of a disqualification on the driver. The court is more likely to find exceptional hardship where the ban will cause difficulty to other persons such as the driver's family, employer/employees or other affected persons, as they will be considered to be innocent parties to the offending behaviour.
Examples of Exceptional Hardship
The following examples have been held to amount to exceptional hardship (but each case turns on its own facts):
- Loss of employment as a driver
- Loss of employment where driving is an important feature for worker, such as sales representative
- Significant difficulties with accessing/relying on public transport
- Medical difficulties of driver or family
- Voluntary or charity work
It is important to provide clear evidence to support any such argument, such as evidence from employers when arguing about the possibility of lost employment, or medical evidence if arguing health problems.
If the court does find exceptional hardship would be caused, and the driver is not disqualified, the same specific arguments cannot be used again in the following three years.
Effect of Totting Up Disqualification
Some consolation can be found in the fact that a totting up disqualification wipes the licence clean of existing penalty points. It should be noted that this applies even where the argument is successful and a shorter disqualification of less than six months is imposed.