Penalty Points Bans.

Adam’s Case Study

Adam contacted me concerned that he was at risk of a 6 month penalty points ban.? He had been caught touching his phone behind the wheel.? He already had 6 penalty points.? Another 6 points, the minimum penalty for a mobile phone offence, would take him to a total of 12 and a minimum 6 month ban.? He wanted to know if was possible to avoid the ban as his job depended on his driving licence.? We arranged to meet for a consultation.

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The Law

Adam had touched his phone when caught in a long traffic jam at red lights.? He was stationary when the phone battery had run out and the phone went dead.? He simply took it from the holder on the windscreen to attach it to a charger and, at that very moment, an officer drove by and booked him.? Adam, like most motorists, didn’t know that recently the law in this regard was changed so that touching a phone when driving, subject to very few exceptions, even if it is off at the time, amounts to an offence.? (Formerly, to commit the offence, Adam would have had to have been using the phone for an ‘interactive communication purpose’ such as making or receiving a call or sending a text message.)? So, he had no defence to the charge.?

The latest offence was committed within 3 years of his previous offences. Thus he would now be liable to a minimum penalty points ban of 6 months unless he could successfully establish that such a ban would cause ‘exceptional hardship’.

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Exceptional Hardship

Adam, his partner and his infant child, all depended on his job to pay his rent.? However, loss of licence would mean loss of job.? Loss of job would inevitably mean a dramatic drop in income which would mean he would face, potentially, eviction.? Additionally, his infant son from his previous relationship lived a 4.5 hour drive away.? This meant that every other weekend he usually undertook a 9 hour return journey twice (to collect and return his son).? Without a licence it would not have been practical, by public transport, to collect and return his son over the course of a weekend due to the distance and cost of the journey.

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Legal Advice

Adam’s situation, summarised above, is not unusual in that millions of motorists would lose their jobs if they lost their licences.?? Often they are the main breadwinners in a family.? It is also very common for people to have to maintain relationships with children who no longer live locally and, indeed, to be required to help support them financially.? Therefore, in many respects, Adam’s situation was common. The courts are given guidelines to be cautious before making finding’s of ‘exceptional hardship’ in common situations such as where loss of job will occur.? Loss of job alone will often be an insufficient basis on which to mount an exceptional hardship submission.? However, there are many variables which cannot be controlled by the defence (such as how leniently or harshly the court will interpret the sentencing guidelines on the day).? Therefore, there was no way of knowing how likely it was that Adam’s case would be successful.? Thus, it is very important for the case to be prepared carefully and in the knowledge of the type of factors that the court is likely to find persuasive. Adam was advised he should obtain and bring to court certain documents which supported aspects of his case.

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The Hearing

Adam’s case was listed in a Kent Magistrates Court.? I met with him in advance of the listing time to go over with him any last-minute questions and to remind him of various aspects of the advice given previously. This is because it is a requirement of such cases that Adam has to personally give his evidence on oath.? He also has to be prepared to face questions on oath challenging his case (cross-examination).? It was important for Adam to bear in mind that it would be very easy to ‘score an own goal’ by not setting out his case clearly enough or even by volunteering some information that had not actually been sought.? Thus, once Adam had been reminded of the major points, we were ready to go.

As it happened Adam acquitted himself well on oath.? Then it was for me, as his barrister, to address the court as persuasively as possible in support of the defence submissions.

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Conclusion

The court ruled in Adam’s favour finding that a penalty points ban would cause ‘exceptional hardship’.

There are some cases which are strong and others weak but there is a large percentage of cases in between, which consist of cases in which loss of job will severely adversely affect both the motorist and his immediate family, which could go either way in court.? Given the guidelines for such cases such circumstances are often regarded as common which can mean that such cases are not regarded as causing ‘exceptional hardship’. This will sometimes mean that they fail at the final hurdle.

Therefore, in all such cases it is vital to prepare the case and the client for what to expect in court (as s/he has a very important role to play).? Expert care in preparation and presentation of a case will often be the difference between such a case being a winning or losing case.