6 Months Totting Up Ban "Exceptional Hardship" Appeal, 6 Months Totting Up Ban "Exceptional Hardship" Appeal Options

[Driver2021]

Hello all, and thank you to the admins for adding me to this board.

Today I received a letter from DVLA requesting that I surrender my licence as I had incurred a 6 month disqualification. I was stopped by a police radar gun back in May and was convicted in court on January 11th. I was clocked at 57mph in a 30mph zone. (I believe I had 3 unspent points on my licence at the date of the court hearing).

My question is this - Whilst I do not wish to plead innocence ( In any fact, I believe the time for that should I have chosen to do so, has now passed) the result of the ban will impact severely on my 90 year old housebound mother of whom I am her carer. I visit her several times a week, to clean, cook for her, do her shopping, take her to hospital and doctors appointments (she is a registered diabetic) etc. I'm wondering what the chances might be of me lodging a successful "Exceptional Hardship" appeal due to the fact that, for the duration of my ban, she will no longer have anyone in a position to care for her in these ways.

Does anyone here have any experience of a similar situation that might be able to advise me on whether this can be overcome? I am basically her only physical contact with the outside world.

Thanks for reading. I would really appreciate any input.

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[andy_foster]

To tot up you must have had 6 or more current points last May (less than 3 years from date of offence).

Did you receive an SJPN, etc.?

[Irksome]

Can’t be totting up if it’s a 6 month disqualification?

What was the outcome of the court case, did you attend?

[southpaw82]

Can’t be totting up if it’s a 6 month disqualification?

How do you mean?

[The Rookie]

As AF says, it’s not the number fo points you had at the time of the court hearing that matters but the number at the time the offence was committed. Your own wording suggests you did have 6 points at the time of the offence perhaps?

Why did you not attend the court case? That was the time to present your Exceptional Hardship plea, the court may agree to reopen the case if you were unaware of the hearing, but if you decided to not bother turning up you will probably get short shrift. As you faced disqualification you should have been made aware of the date and told to attend. I do hope you aren’t currently driving as driving while disqualified is a serious offence.

You could appeal the sentence taking it to the next court, the disqualification would be put on hold pending the appeal.

This post has been edited by The Rookie: Sat, 23 Jan 2021 - 17:31

[Ahelpinggand]

Has op been convicted of a FTF and the speeding charge?

Only way I can see he'd tot?

OP check your driving license online and provide the codes is possible.

Suspect you have an MS90 and associated speeding codes

Did you receive a SJPN?

[The Rookie]

He was stopped at the time, so no, no S172, and 57 in a 30 would be six points.

Nope, he almost certainly had six points at the time of the offence, and his wording suggests that points stopped counting before the court case and he didn’t understand that wouldn’t help him.

[Driver2021]

Hello again,

Thanks to everyone for your feedback so far.

Yes. I did have more than 3 points when the offence was commited. I had an additional 6 for two SP30's still on my licence. (They were for when I was captured going over 20mph in the weeks after the reduced speed limits came in in various locations around London. They dropped off in October 2020) I guess I was wrong in thinking that any points added during the court case would only be applicable to the 3 that were on my licence at the time of my conviction in court.

I did receive a notice of intended criminal prosecution but decided that I should just accept the points and fine that were likely due as I was obviously guilty of the offence and put up no argument to the police officer at the time. (This was also evident in his notes).

Shortly before the Christmas period I went to stay with my mother who would otherwise have been totally isolated during that time. I stayed there to take her for two Covid vaccinations and after to be around in case she had any adverse reactions.

I returned home yesterday to find the letters that had arrived in my absence. Three from the court. One sent prior to the court date advising me of a likely disqualification, one advising me of the £800-odd fine I had received from the court and one from DVLA requesting that I surrender my licence.

This is where I am today. If I had been in receipt of the letter informing me of my possible disqualification before going to stay with my mother, then of course, I would have requested that the court took the circumstances relating to her into account. The problem is that it was those actual circumstances that meant I was not aware of the possible outcome until after the magistrate had made the decision.

I spoke with my mother today. She is absolutely distraught. Blames herself for me not being able to respond and is in a state of panic regarding the difficulties she will now face. I told her I would try to speak with someone on Monday, hence in the meantime posting this here in the hope that someone may have some insight into the possibilities for overturning the disqualification.

Many thanks again for your comments.

[notmeatloaf]

It would be helpful if you could clarify exactly what documents you have received, on what date. Either scanned with personal details removed, or the verbatim letter header.

Normally if you are stopped at the time you do not receive a NIP - although in a small number of cases one is sent. This is because the police officer warns you at the time you are being reported.

Instead, usually just before six months after the offence you receive a letter with a court hearing date. The letter will contain a phrase along the lines of

"As the court is considering whether to disqualify you from driving because of the seriousness of the offence(s) or the number of penalty points on your licence. If you do not come to the next court hearing, the court will either hear the case and disqualify you from driving or issue a warrant for your arrest to make you attend. If the court disqualifies you, the disqualification will start AT ONCE whether or not you are present or receive notice by post."

If you have received this letter and not picked up on this requirement, then your options may be reduced.

If you have not received this letter, you can ask the court either to reopen the case or set aside the conviction (upon which a new trial date will be set), to allow you to present an exceptional hardship plea and potentially remove the totting ban, although you will still receive points.

Either way, it is important that you stop driving immediately until you find out the details. Totting bans are effective immediately whether or not the driver is aware, which is why you are asked to attend court. Now you are both apparently banned AND aware, you would risk a conviction for driving whilst disqualified, which would attract it's own penalty.

With your mother as an EH plea, much would depend on whether you could undertake such care duties without a car. Obviously the distance she lives away, public transport links, people able to give you a lift etc. would be considered. Disqualification causes everyone inconvenience, and having a slightly longer journey would probably butter few parsnips. Having a journey so impractical that you could not visit would be a much stronger case.

[TMC Towcester]

As others have said - think carefully about your next action. EH please have come under scrutiny and the 'use' of them has been tightened. To have a fighting chance try and 2nd guess what you may be asked about public transport alternatives (inc taxis - cost doesn't feature to a degree), other family members who can assist, friends/family who can also drive etc etc.

Whilst it's not black and white, if you or your Mum live in (separate) rural areas the public transport point has greater traction. But if there are other family in the same vicinity/reach as you it may not matter.

Some posters offer up a draft on here and the experts will critique itas if coming from a magistrates PoV.

In terms of missing the Court paperwork you'll need to explain howe all the other 'life mail' was attended to given the time you were away.

This post has been edited by TMC Towcester: Sun, 24 Jan 2021 - 09:33

[The Rookie]

If you didn’t get home to the court notification in time to attend you can ask the court to re-open the case under s142 of the magistrates court act ‘in the interests of justice’ so you can present your EH argument.

You need to make it clear the time lag between court date, when you got home to the notification and when you got the result, if you could have asked for this much earlier they may decide you have waited to long and not agree.

[notmeatloaf]

As others have said - think carefully about your next action. EH please have come under scrutiny and the 'use' of them has been tightened.

Really? As far as I am aware guidance to magistrates hasn't changed since 2015. Especially useful is the inclusion of examples from case law IMO.

1) Under section 35 of the Road Traffic Offenders Act 1988, drivers who accumulate 12 or more penalty points within any 3 year period are liable to a mandatory disqualification for a minimum period of 6 months. The measure is an important part of the Government's road safety agenda and is intended to act as a powerful deterrent to motorists who continue to commit road traffic offences despite previous endorsements.

2) The legislation only allows Magistrates not to disqualify, or to disqualifyfor less than 6 months, if the Court is satisfied, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction. The most common mitigating circumstance put forward is the potential effect of the disqualification on the offender, namely that hardship would result.

3) Section 35(4) (b) of the RTOA 1988 precludes the Court from taking into account "hardship, other than exceptional hardship". Prior to the 1988 Act, section 93(3) of the Road Traffic Act 1972 operated to impose a totting-up ban for any 3 offences within a 3 year period. The 1988 Act, in allowing four 3 penalty point offences before totting up comes into effect, gives a further chance to the repeat minor offender. However, parliament sought in the 1988 Act to restrict the ability of the offender to advance hardship arguments substituting the term "exceptional hardship" for the pre-existing criterion of "undue hardship".

4) There is no strict definition of the term "exceptional hardship", it being amatter of fact and degree to be decided in each individual case. However the following notes are intended as guidance to assist magistrates in achieving a consistent approach:

i) Almost every disqualification entails hardship for the person disqualified. In essence, this is part of the deterrent objective of the provisions combined with the preventative effect of the order not to drive.

ii) If a motorist continues to offend after becoming aware of the risk to his licence of further penalty points, the court will be far less inclinedto find exceptional hardship where he is the only person to suffer as a result of a ban.

iii) Loss of employment will be an inevitable consequence of a driving ban for many people nowadays. It is submitted that loss of job, by itself, is unlikely to satisfy the "exceptional" test.

iv) Some judicial guidance can be found in the Scottish case of Brennan v McKay (1996) 1997 S.L.T. 603. A taxi-driver reached 12 penalty points on being convicted of speeding. He claimed that he would be likely to lose his job and be unable to obtain other work, and this would have a substantial effect on his family. The High Court of Judiciary held that the justices were entitled to conclude that exceptional hardship had not been demonstrated.

v) Whilst it was not an invariable rule that exceptional hardship would only be established where persons other than the accused and his immediate family would suffer, it was necessary to demonstrate that there were other circumstances associated with loss of employment which might involve reflected hardship of a serious kind on the accused's business, his family or his long term prospects; per Lord Hope in Brennan v. McKay.

5) Offenders may not put forward the same circumstances which have been used either for not disqualifying or for reducing the length of the totting up disqualification within 3 years of the conviction; s. 35(4)© RTOA 1988. It is therefore important for the Court to make a full record of the precise circumstances which justified any finding of exceptional hardship.

EXAMPLES OF “EXCEPTIONAL HARDSHIP” CASES
Prospect of loss of employment resulting in likely loss of family home, resulting in hardship to immediate family; Railton v Houston

Loss of business owner's licence would result in collapse of business and loss of employees jobs; Robinson v Aichison

Risk to family home and inability to meet debts; Allan v Barclay

Business relied upon the owner's ability to drive and it was not possible for him to employ a driver; McFadyen v Tudhope

The effect of a business owner's disqualification upon independent contractors should be taken into account; McLaughlin v Doherty

The accused had to take her child to hospital on a regular basis; Edmonds v Buchanan

Loss of licence would endanger the family home. Taken together with risk to job losses to employees; Howdle v Davidson

The loss of licence of skilled employee would cause serious hardship to the employer; Findlay v Walkingshaw

A single mother needed to drive to take care of her two disabled children; Colgan v McDonald

A father had to drive to his son for kidney dialysis; Kirk v PF

The current economic climate into account when determining the effect of loss of employment, particularly upon employees; Mugarenza v PF

The accused would be unable to continue charity work; Gardiner v PF

Where loss of licence and employment meant child could not continue in further education, exceptional hardship was established; Bruce v PF

The relevant test is one of risk, not one of certainty – i.e. a risk to the family home, a risk to employees jobs is the level required. It is not required to prove that such things will definitely occur although the risk must be substantial; LW v PF

It was held that a potential loss of employment for the appellant’s 10 employees amounted to exceptional hardship; Waine v PF

[big_mac]

Really? As far as I am aware guidance to magistrates hasn't changed since 2015. Especially useful is the inclusion of examples from case law IMO.

The explanatory guidance changed, although the guidelines did not:-
https://www.sentencingcouncil.org.uk/news/i...1-october-2020/

[NewJudge]

Yes the "reinforcement" last year was simply that. It was believed that Magistrates were becoming or had become too ready to accept EH arguments and the October guidance was simply to remind them of the principles.

[The Rookie]

I agree, emphasising that exceptional in exceptional hardship doesn’t mean ordinary hardship.

That circa 25% of totting cases resulted in a successful plea I think confirms the issue, exceptional I would suggest should be circa 10% or even less.

This post has been edited by The Rookie: Mon, 25 Jan 2021 - 12:05