Is it about to get harder to avoid a 6 month totting up ban?

There are growing calls for drivers with 12 or more points not to be able to use an “exceptional hardship” argument as a means of avoiding a ban – even if they could lose their job as a result of not being able to drive.

The Sentencing Council has launched a public consultation on its proposals warning that all banned drivers are likely to suffer some form of “hardship” & that Magistrates must have evidence of exceptional hardship for drivers to avoid a driving ban.

Currently, if you receive 12 or more points on your licence within a three-year period, you face at least a six-month driving ban unless you successfully claim that not being able to drive would cause you or, others, exceptional hardship. Research showed that as at December 2019, more than 10,000 drivers in Great Britain were still driving, despite having 12 or more points on their licence.

The new proposals from the Sentencing Council say that Magistrates should be cautious before accepting exceptional hardship arguments without evidence that alternatives (including alternative means of transport) for avoiding the exceptional hardship are not viable.

Probably the most concerning proposal is the Council’s suggestion that the loss of your employment will not in itself necessarily amount to exceptional hardship. It adds that, whether or not it does, will depend on your circumstances and the impact that the loss of employment will have on you and/or others.

The consultation also includes proposals to clarify the guideline for driving while disqualified to make it clear that an existing disqualification period should be added to any new disqualification period imposed by the court so that both are served in full.

Some organisations who have long since been lobbying for the exceptional hardship argument to be abolished altogether will welcome the proposals believing that they will stop what they see as derisory arguments succeeding and ensure that repeat offenders are disqualified from driving.

One organisation has previously called for closer working between the courts and the DVLA so that where ‘exceptional hardship’ has previously been successfully used to avoid a ban, the reasons relied on should be recorded so that the driver cannot use the same excuse twice.

 Is this a lot of bluster? How does it work at the moment?

Some of the views expressed by the Sentencing Council actually reflect the way magistrates have been dealing with exceptional hardship arguments for some time.

 Let us look at some of their proposals:

·        simply arguing that you will be inconvenienced if you are banned from driving is not sufficient to amount to exceptional hardship and, never has been. The word “exceptional” is there for a reason. You have to show that the consequence of a ban will go beyond mere inconvenience & be disproportionate

·        it is virtually impossible even now to run an argument that alternative means of transport such as buses, taxis or, trains are not viable without explaining why that is the case. This may be because your daily appointment schedule is such that you could not get to all appointments without the use of a car. It may be that you need to transport product samples or equipment which makes anything other than your car impractical. The locations you go to could also be pretty much inaccessible, other than by car. These arguments already need to be evidenced, normally by a specimen diary showing your appointments & the travel time needed for each

·        just saying that you will lose your job if you are banned has again never been sufficient. In any event this needs to be confirmed in writing by your employer & you then need to go further by showing what the impact of your loss of employment will be on you or, your family. Will you be unable to pay your rent, your mortgage, other monthly commitments meaning you could lose your home? How easy will it be for you to find alternative employment?

·        Magistrates already announce the reasons for their finding that exceptional hardship will result & these reasons are recorded by the Court. They cannot be relied on again for 3 years

 I have specialised in this type of case for many years & did not fail with an exceptional hardship argument throughout 2019 appearing in Courts from Guildford to Harrogate in the process.

So, what is the point of this consultation process?

The reality is that the stated concerns have no merit given the way in which Magistrates already approach these cases. Is the plan actually to abolish by stealth the concept of “exceptional hardship” altogether so that a 6 month ban is automatic when you reach 12 or more points? If so, should the number of points that triggers such a ban be reviewed given the vast increase in the number of speed cameras & their ability to capture cars exceeding the speed limit from vast distances?

 No-one condones speeding and, of course, speed is a common factor in many accidents, but the consequences of a 6 month ban is catastrophic for many people and their families or even, thier businesses. It is all too easy where your car is registered to a lease company or, your employer for you to find out you have committed 3 or 4 speeding offences without your realising you had committed one because of the delay in you being notified of the alleged offence.

The safety of road users needs to be balanced with fairness for drivers.

The Sentencing Council consultation runs for 12 weeks from 22 January to 15 April 2020.