Exceptional Hardship and Totting-up Disqualification

Some of the most common offences that are committed across the UK pertain to motoring and carry penalty points, the most common being speeding offences but can also include offences relating to car maintenance such as having worn tyres.

Totting-up

The imposition of penalty points can have serious consequences. The first major concern is how insurance premiums are affected as penalty points will usually lead to increased insurance costs. However, for those with a full licence, amassing 12 penalty points within a three-year period or more will lead to a mandatory minimum six-month disqualification. This is referred to as “totting-up”.

What if I am faced with a totting-up disqualification – ‘Exceptional Hardship’

Section 35 of the Road Traffic Offenders Act 1988 (“RTOA”) states that a court must order a period of disqualification in the event 12 penalty points or more are accumulated unless, there are grounds for mitigating the normal consequences of conviction to allow for a shorter period of disqualification, or to not be disqualified at all.

Specifically, the court may only consider under section 35(4)(b) hardship that is deemed exceptional. The legislation however does not specifically define what will be counted as exceptional.

The Sentencing Council have issued guidance for courts and what may be taken into consideration and be deemed ‘exceptional’. The guidance states that the court must be satisfied that a defendant would experience hardship that is not mere inconvenience.

For example, the loss of employment is a likely consequence of a driving disqualification and will undoubtedly cause hardship but loss of employment as an argument in isolation is specifically precluded from being considered exceptional. Further evidence would be required to show the level of exceptional hardship that being out of employment would cause such as inability to pay a mortgage or that dependants would suffer as a result.

Can the disqualification be longer than six months?

The court may impose any length of disqualification they like should someone receive a totting ban, the law only states that a minimum period of disqualification must be imposed:

• Six-months disqualification if no previous disqualification is to be taken into account
• One-year disqualification if there has been a previous disqualification of over 56 days in the three-year period prior to the commission of the offence before the court.

In practice, the Magistrates’ Court will usually impose the minimum term permittable.

Are there any other court considerations when pleading exceptional hardship?

Under section 35(4) RTOA, the court are not allowed to consider any facts that seek to suggest the offence before the court is not serious (such as arguing a disqualification should not be imposed due to a minor speeding matter), nor may they consider any previous arguments presented as exceptional hardship that have been considered and accepted previously within the past three years.

Outcomes for pleading exceptional hardship

Once the court have heard arguments of exceptional hardship, there are three potential outcomes:

1. The court finds that the defendant would not suffer exceptional hardship, and the appropriate minimum-disqualification term is imposed
2. The court finds exceptional hardship would occur should a disqualification be imposed. The penalty points for the offences will be imposed however, the court will exercise discretion and not impose a period of disqualification. This means that the defendant will have 12+ penalty points on their licence for 3 years. Any further offences that carry penalty points will put them again at risk of a totting disqualification until the penalty points expire.
3. A third option (albeit rarely exercised by the court) is to find exceptional hardship would incur and impose a ban less than 6-months. For instance, the court may impose penalty points and then impose a totting-ban of 1 month. In this situation, because a totting-ban has been triggered, the penalty points are wiped clean and there will be zero penalty points remaining on the DVLA record.

How can Olliers help?

Preparing exceptional hardship effectively is challenging, the court require detailed arguments and evidence to prove that hardship that may be faced because of a disqualification will be exceptional. The threshold for finding exceptional hardship is high so it is important to secure representation at court and to prepare thoroughly so that the hardship arguments presented will be deemed exceptional.

Olliers Solicitors – Specialist Motoring Lawyers

Contact our specialist motoring team by completing the form below, emailing info@olliers.com or telephoning 0161 8341515 (Manchester) or 0202 38836790 (London).