Totting Up (Penalty Point) Bans and Exceptional Hardship
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Penalty Point Bans
If you commit offences which would result in an accumulation of 12 or more penalty points within a three year period, you face a driving ban of a minimum of 6 months. The court must disqualify you unless there are circumstances to mitigate the consequences of the conviction.
The 3 year period runs from offence date to offence date. It does not matter how many points you have on your licence by the time you get to court.
Exceptional Hardship Arguments
Exceptional Hardship is when there are mitigating circumstances which can be put forward to avoid a driving ban in certain cases. It is your opportunity to explain to the court what the consequences would be if you were disqualified.
Being disqualified for months can have catastrophic consequences for many people. They may rely on their licence for their job, to pay their mortgage or rent, and have a family to support. They may have other people such as elderly or disabled relatives who rely on them for transport and/or care. They may run a business and their inability to drive would mean that their employees would lose their jobs or have to take a pay cut.
A court hearing will be required so that your evidence can be tested and questions put to you. Exceptional Hardship is not something which may be put forward in writing.
If you are due to reach 12 or more penalty points you will not be eligible for a fixed penalty for the usual offences, such as speeding, careless driving, using a mobile phone, or driving without insurance. You may be sent a letter stating that you have too many points on your licence. If not, any attempt to accept a fixed penalty notice will ‘bounce back’.
The matter will then proceed to court, usually by way of a Single Justice Procedure Notice.
If you plead guilty, some courts will automatically list your case for a court hearing. Other courts will send out a Notice of Proposed Driving Disqualification which gives you the option to request a court hearing.
When exceptional hardship may be used to avoid a ban
Exceptional Hardship is only relevant if you are facing a ban as a result of reaching 12 or more penalty points within 3 years.
Exceptional Hardship cannot be used for driving offences which carry an obligatory period of disqualification such as drink driving, dangerous driving, failing to provide a specimen etc.
Exceptional Hardship – factors not to be taken into account
Section 35(4) of the 1988 Offenders Act provides that none of the following circumstances should be allowed to be taken into account:
- any that are alleged to make the offence or any of the offences not a serious one;
- hardship, other than exceptional hardship; and
- any circumstances taken into account by a court when the offender escaped disqualification or was disqualified for less than the minimum period on a previous occasion for totting up.
Examples of factors that cannot be taken into account
Those alleged to make the offence or any of the offences, not a serious one:
- I was only just over the speed limit;
- There was no other traffic around;
- I was just keeping up with the other vehicles.
Hardship, other than exceptional hardship:
- I will have to catch two buses to work which will mean I have to get up 30 minutes earlier;
- I don’t like using public transport;
- I won’t be able to attend my usual social events.
Circumstances taken into account with in the last 3 years. This means it is possible to argue exceptional hardship more than once within 3 years, but you must put forward different grounds each time.
Penalty Points Ban Summary
12 point bans, penalty point bans, 6-month driving bans, totting disqualifications
A person who accumulates 12 penalty points or more within a three year period must be disqualified from driving for a minimum period of six months unless the court is satisfied, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction.
S.35 of the Road Traffic Offenders Act 1988
The Court’s Options
No Exceptional hardship
The court must disqualify you from driving for a minimum of 6 months. It has no discretion to impose a shorter ban.
Exceptional Hardship found
The court has the discretion to:
- disqualify you for a shorter period;
- not disqualify you at all;
- disqualify you for 6 months.
A totting disqualification of any length will wipe your licence clean of penalty points.
Give me a call to discuss your driving case. I have many years’ experience dealing with all sorts of driving offences. You can read more about me here.
Why use us?
Our specialist driving offence solicitors have represented countless motorists who faced a totting up ban of at least six months. On virtually all occasions, the driver has walked away with their licence intact, or with a much shorter ban. This is because we have been able to put forward an exceptional hardship argument to the court which gives the court discretion either not to ban the driver, or to ban them for a shorter period following which, the driver’s licence is returned without points.
If you’re facing a totting up ban, get in touch. We’ll give you an honest opinion about your chances of success so you can make an informed decision as to whether to instruct us for your court hearing.
Exceptional Hardship FAQs
What amounts to Exceptional Hardship?
Therefore the court will only find exceptional hardship when the consequences are something ‘out of the ordinary’. Depending on the circumstances, loss of a job may sometimes be enough in itself. However, it is the knock-on effects of loss of a job which can make the strongest argument.
Exceptional hardship does not need to be financial. It can exist if there will be a substantial impact on mental health or if it impacts in other ways. Courts are obliged to take into account the impact on others and should have more sympathy when there is to be an impact on innocent third parties. This can include family members, colleagues or anyone else who would be affected by you being unable to drive.
Courts need a certain level of detail if they are to make a favourable decision. It is not advisable to attend court without documentary evidence of some sort. Courts are aware that no-one wants to lose their licence and can be sceptical if claims are not backed up somehow. We can advise you of the evidence that you need to take with you to satisfy the court of your argument.
What Does an Exceptional Hardship Court Hearing Involve?
The burden is on you to persuade the court that it would result in Exceptional Hardship to themselves and/or others. If we are to represent you, the amount of speaking you will need to do in court will be significantly reduced. Often the court will allow us to put forward your argument for you and then confirm on oath that what we have said is accurate and truthful.
Usually, it will be necessary to provide certain documentary evidence to support that assertion and it is important you know what to take with you.
We can advise you on this whether you want us to represent you at court or not.
Can the Court Disqualify Me for Longer Than 6 Months?
If there are two previous orders of disqualification of 56 days or more, the minimum period is two years.
However, if you are convicted on the same occasion of more than one offence, the court can still only impose one driving ban for totting up. If the new driving offence would take you to more than 12 points, the court could decide to impose a disqualification longer than 6 months.
Can the Police disqualify me from driving?
Is Loss of Job Enough to Show Exceptional Hardship?
Brennan v Mckay 1996
This is the most famous case for Exceptional Hardship. The case involved a taxi driver who had faced a totting up disqualification as a result of a conviction for speeding. He had submitted that the loss of his licence would probably result in the loss of his job, that he would have difficulty in finding another and that this would cause hardship to his family. He had been disqualified for six months. He appealed unsuccessfully. It was held that although the disqualification would cause hardship, this would not amount to “exceptional hardship”.
Will the Court be More Sympathetic to Hardship Caused to Others?
Cornwall v Coke 1976
The driver was a social worker who faced a ban under the totting up rules. His work included transporting the elderly, but he accepted that he was not liable to be dismissed from his job if he was disqualified. The court clerk wrongly informed the court that hardship to the public could not be a mitigating circumstance entitling them not to disqualify under the totting-up provisions. The court, therefore, disqualified the driver for six months.
He appealed successfully. It was stated that hardship to the public is a mitigating circumstance, and indeed is rather stronger mitigation than a hardship to the offender and that therefore the magistrates did have a discretion. As a result, his disqualification was lifted completely.
What do I Have to Demonstrate for the Court to Find Exceptional Hardship?
Fay v Fay 1982
This is not a criminal case; it is a family case where the question of exceptional hardship was considered. The resulting principles are still relevant to exceptional hardship in motoring offence cases.
The main point made by the court was that the question of whether the evidence is sufficient to make out a case of exceptional hardship is a matter of assessing the evidence, rather than a matter of inference ie. ensure you go to court prepared with evidence to back up what you’re saying. The hardship must be exceptional, not just hardship.
Do I need a solicitor for an exceptional hardship case?
We will advise you at the outset in as to the prospects of success of your case so that you can make an informed decision whether to spend the money on court representation. We pride ourselves on giving honest advice and if there are doubts about the strength of your case, we will tell you.
That said, with our experience, should you choose to represent us, we’ll do our utmost to ensure your case is the strongest it can be to ensure the best possible outcome for you. We’ll ensure you’re fully prepared for the court hearing so you know what to expect. We will advise you of what documentary evidence to gather to present your case and prepare you in relation to the court procedure.
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