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Totting up - a cautionary tale
Morefoolme
post Wed, 1 Dec 2021 - 12:24
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Just wanted to share my recent experience of Totting Up.

Got two speeding tickets doing 24 and 26 in the same 20mph zone in the space of two weeks - speed ran away with me on empty roads in the first national lockdown. A well known local spot for getting 'done' as it's an arterial road that runs between two 30mph roads & fairly recently changed from 30 to 20mph. Was wholly unaware of Totting Up and declined Speed Awareness course as a single parent, working full time and with kids off due to lockdowns I couldn't see how I'd schedule it in....lots of stupids on my part I now realise.  I should have: 1. checked points on licence (1x failure to stop at a red light where I'd had fine reduced on mitigation due to weather conditions and unknown defect after submitting evidence from my garage and 1x going 36mph in an urban 30mph zone which was close to expiring), 2. not contesting either of the recent offences (camera location/signage placement, overgrown trees obscuring signage etc)...and 3. not watching my speed like a hawk. 

I contacted a well known and well thought of law firm quite often referenced here I'll just refer to them as National Law Firm (NLF)  . First contact was from a partner in the relevant department. They were nothing but helpful and encouraging. I was told as a single parent with 1x special needs kid + 2 more kids at home, as sole carer for my elderly mother and as a community volunteer I had really good grounds for EH as others, rather than just me, would be impacted by me losing my licence. On advice from them I got letters/statements from my kids Dad, my mother, my mother's medical team outlining her needs and reliance on me, a letter from the organisation I volunteer from confirming my role and why I needed to be able to drive, a letter from a friend who has a kid with complex medical needs who I do childcare for on an adhoc basis as one of his few trained carers locally, letter from my own son's specialist nurse outlining his care needs. On receiving these docs NLF contacted me for a call to run through mitigation.

I received a draft mitigation statement from a 'case handler' at NLF a few days later for approval. It was full of typos and factual errors - including a clearly copied and pasted para about needing my car/licence for work which was something I had advised was wholly not the case and not relevant. I was a solicitor in private practice for 15+ years (in a field wholly unrelated to traffic law) so made and agreed corrections. Next contact was really just to finalise advice and court procedure and so forth and they were very optimistic that I'd likely get a short ban on basis of my evidence. Got to court on time, brief was late, brief had quite clearly not done ANY prep and his first words to me were that NLF had been overly optimistic and built up false hopes. Brief then proceeded to go straight to EH application, got my sons name wrong, date of offences wrong, decided to talk about how I needed my licence for my job and bluffed his way thru' the supporting docs I'd supplied that he'd clearly not read before. Due to covid restrictions I was in the dock behind a perspex screen and had no opportunity to correct the brief as he spoke. I got a 6 month ban. Brief said that the outcome might have been different in front of a District Judge as the mags in the city where the hearing was held were very anti car.

I complained to NLF about the brief - a quick google of him revealed him to be newly qualified and also being quite a hot topic in his home town's local papers - he's a local councilor there and had gotten into a spat in a supermarket car park over unnecessarily parking in a disabled parking bay and also been in court over  a restraining order from his ex partner. NLF took my complaint seriously and agreed to waive their fees for appealing. Appeal was lodged and I got my licence back pending appeal but I had to chase and nag for responses to all my correspondence.
 
Prior to the appeal hearing NLF case handler called to run through my evidence, suggested an additional letter about my mother who had a cardiac arrest and hospital stay between my orig hearing and the appeal, which I obtained. They assured me I would not get same brief and again were super optimistic about my chances of walking away with less than the full 6 month ban. Turned up a court, new brief was better prepared than the original one but said really he thought that my chances of successful EH application were slim as the guidelines on EH were tightened up in Oct 2020 but that NLF and their likes hadn't really conveyed that message to potential clients keen to chase fees. Brief was great but he turned out to be from same chambers as, and good mates with, original useless brief. The DJ was really friendly and listened to me but explained that EH had tightened up and my case was not strong enough so did not overturn my 6 month ban (NB: the CPS' brief did catch me in the hall after and say that he thought I'd had the book thrown at me a bit as he himself was a single parent and felt that the bench didn't really get the stress and hassle being a single parent can be). Fair enough but I do wish NLF had explained this better, there was NO follow up from NLF after either hearing either - no call, not even a file closing letter. I never had contact from the partner again, just the 'case handler' (legal quals unknown). 

I've now got 84 days left of my ban and have well and truly learnt my lesson. I just wanted to warn others to be realistic and not swayed by unrealistic promises from law firms who's primary interest is bringing in cash in a competitive market.
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post Wed, 1 Dec 2021 - 12:24
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NewJudge
post Wed, 1 Dec 2021 - 14:14
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Just a point of correction. The guidelines were not tightened up in 2020. Magistrates and DJs were simply reminded that the hardship suffered by someone facing a totting up ban has to be "exceptional" and not everyday. It made the point that virtually everybody who is banned faces some sort of hardship. It also went on to explain that loss of employment alone is not usually grounds for the court to exercise its discretion by not imposing a ban. Magistrates were already aware of this guidance but it was felt that EH pleas were being accepted too readily. Here's the text of the guidance note:

When considering whether there are grounds to reduce or avoid a totting up disqualification the court should have regard to the following:
It is for the offender to prove to the civil standard of proof that such grounds exist. Other than very exceptionally, this will require evidence from the offender, and where such evidence is given, it must be sworn. Where it is asserted that hardship would be caused, the court must be satisfied that it is not merely inconvenience, or hardship, but exceptional hardship for which the court must have evidence. Almost every disqualification entails hardship for the person disqualified and their immediate family. This is part of the deterrent objective of the provisions combined with the preventative effect of the order not to drive. If a motorist continues to offend after becoming aware of the risk to their licence of further penalty points, the court can take this circumstance into account. Courts should be cautious before accepting assertions of exceptional hardship without evidence that alternatives (including alternative means of transport) for avoiding exceptional hardship are not viable;
Loss of employment will be an inevitable consequence of a driving ban for many people. Evidence that loss of employment would follow from disqualification is not in itself sufficient to demonstrate exceptional hardship; whether or not it does will depend on the circumstances of the offender and the consequences of that loss of employment on the offender and/or others.
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Morefoolme
post Wed, 1 Dec 2021 - 14:19
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Thanks for explainging properly New Judge....I think I was kind of there, applied too readily before, applied less readily now was kinda how it was explained to me and this was put to me as 'tightened up'.

And I do believe that in my case my hardship was, indeed, not nescessarily 'exceptional' and I fully accept that I was at fault and am now serving my ban (and will be seriously reconsidering my driving habits when back on the road) but I was lead to believe that it was by the solicitors I instructed. I'm not seeking to damn my own former profession I just feel like I fell hook line and sinker for a hard sell. More fool me......(perhaps especially as I did a stint as an 'ambulance chaser' in a PI department as a Trainee so I should've known better!)

This post has been edited by Morefoolme: Wed, 1 Dec 2021 - 15:11
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IanJohnsonWS14
post Wed, 1 Dec 2021 - 16:26
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I would be concerned if the court treated a single parent any differently, after all a totting ban occurs after several offences and the offender is (presumably) aware at the time that others are dependent on them and that they should take care not to offend.


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The Slithy Tove
post Wed, 1 Dec 2021 - 16:32
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QUOTE (Morefoolme @ Wed, 1 Dec 2021 - 12:24) *
2. not contesting either of the recent offences (camera location/signage placement, overgrown trees obscuring signage etc)

As an aside, that was never going to fly anyway, so just as well you never pursued it.
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NewJudge
post Wed, 1 Dec 2021 - 17:28
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QUOTE (IanJohnsonWS14 @ Wed, 1 Dec 2021 - 16:26) *
I would be concerned if the court treated a single parent any differently, after all a totting ban occurs after several offences and the offender is (presumably) aware at the time that others are dependent on them and that they should take care not to offend.

But the fact that "the offender should have been more careful" is not really the correct way to approach the consideration of an EH plea. All that should be taken into account is whether the hardship resulting from the ban is exceptional or not. All offenders should have been more careful; they should not exceed the speed limit. But if the hardship suffered by the offender is more severe because of his or her personal circumstances then that must be considered. A single person who is fit and well but who has no dependent children will find an EH plea a harder push than a single parent with young children to get to school/nursery etc. The single parent may succeed with an EH plea where the non-parent might not (all else being equal).
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notmeatloaf
post Thu, 2 Dec 2021 - 02:40
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QUOTE (IanJohnsonWS14 @ Wed, 1 Dec 2021 - 16:26) *
I would be concerned if the court treated a single parent any differently, after all a totting ban occurs after several offences and the offender is (presumably) aware at the time that others are dependent on them and that they should take care not to offend.

Single parents are pretty much a textbook reason why EH should exist.

If my wife or I lose our licence, >90% of the driving for the kids will be done by the other parent for the duration of the ban.

For a single parent living in an area without public transport, kids will just miss out on the majority of those activities because they aren't essential even though they may be highly desirable - sports teams, clubs, socialising, dentist etc.

Whether or not their parent has been careless or reckless doesn't mean they should be exceptionally disadvantaged far beyond what children in a family where both parents drive would be. IMHO it is a much stronger argument then "my employer says I'm irreplaceable".
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peodude
post Thu, 2 Dec 2021 - 10:56
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QUOTE (notmeatloaf @ Thu, 2 Dec 2021 - 02:40) *
For a single parent living in an area without public transport, kids will just miss out on the majority of those activities because they aren't essential even though they may be highly desirable - sports teams, clubs, socialising, dentist etc.


I have to disagree, many single parent families, and indeed families in general, can't even afford a car and associated running costs, and have to make do with public transport. They'll just have to adapt, car sharing with friends or other parents in the groups.

At this rate you'll be wanting to give a parents a car as part of their benefits so the children aren't disadvantaged.

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The Rookie
post Thu, 2 Dec 2021 - 12:43
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QUOTE (peodude @ Thu, 2 Dec 2021 - 10:56) *
QUOTE (notmeatloaf @ Thu, 2 Dec 2021 - 02:40) *
For a single parent living in an area without public transport, kids will just miss out on the majority of those activities because they aren't essential even though they may be highly desirable - sports teams, clubs, socialising, dentist etc.


I have to disagree, many single parent families, and indeed families in general, can't even afford a car and associated running costs,

Try comparing what you wrote to what he said... then maybe delete the result of your obviously erroneous thought process?


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NewJudge
post Thu, 2 Dec 2021 - 15:23
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QUOTE (notmeatloaf @ Thu, 2 Dec 2021 - 02:40) *
Single parents are pretty much a textbook reason why EH should exist.

Personally I don't believe the EH facility should be available at all. People who face disqualification as a "totter" have committed at least two, and more often three or four offences in the space of three years. They are "on notice" as soon as they reach nine or more points. Conversely, drivers facing disqualification for a single offence, such as excess alcohol or dangerous driving, have no such luxury available and have had no period of notice to mend their ways. The hardship they face may be equally "exceptional" but they just have to suck it up.

This post has been edited by NewJudge: Thu, 2 Dec 2021 - 15:24
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notmeatloaf
post Thu, 2 Dec 2021 - 16:01
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QUOTE (peodude @ Thu, 2 Dec 2021 - 10:56) *
QUOTE (notmeatloaf @ Thu, 2 Dec 2021 - 02:40) *
For a single parent living in an area without public transport, kids will just miss out on the majority of those activities because they aren't essential even though they may be highly desirable - sports teams, clubs, socialising, dentist etc.


I have to disagree, many single parent families, and indeed families in general, can't even afford a car and associated running costs, and have to make do with public transport. They'll just have to adapt, car sharing with friends or other parents in the groups.

At this rate you'll be wanting to give a parents a car as part of their benefits so the children aren't disadvantaged.

There is a difference between having access to a car taken away, and never having a car at all.

For instance, I have a friend who is a single mum. Works hard so not entitled to benefits. Because she hadn't been given a council house she lives in the middle of nowhere 15 miles away because it was the only place that was affordable. A car is essential.

IMO being told "you move into a council house" so that she can continue to work and look after her child is nonsensical at least for a first chance
Obviously if she goes to court, the magistrates make it clear they are giving her a final chance and she gets more points, fair enough.

I agree cases should be truly exceptional where there is no reasonable alternative without having to present to the council as homeless etc. Not just ones where the alternatives would be inconvenient.
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notmeatloaf
post Thu, 2 Dec 2021 - 16:13
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QUOTE (NewJudge @ Thu, 2 Dec 2021 - 15:23) *
Personally I don't believe the EH facility should be available at all. People who face disqualification as a "totter" have committed at least two, and more often three or four offences in the space of three years. They are "on notice" as soon as they reach nine or more points. Conversely, drivers facing disqualification for a single offence, such as excess alcohol or dangerous driving, have no such luxury available and have had no period of notice to mend their ways. The hardship they face may be equally "exceptional" but they just have to suck it up.

Worth saying that although we tend to refer to EH on here and the idea that it's to ensure people with exceptional circumstances are not punished more than others, S35 is actually written as a way for courts to use discretion to "[mitigate] the normal consequences of the conviction". The power can be used as long as they are not doing it because of circumstances alleged to make the offence(s) not a serious one; or hardship other than exceptional hardship.

So the court are equally able to apply S35 reduction/no ban even if there is no hardship. E.g. someone rushing to hospital because their child has been hit by a car, driving to their dying parent, etc. Likewise they could apply a totting ban if it is accepted they would suffer exceptional hardship but the circumstances - for instance exceptionally poor driving, lack of remorse - mean they should be banned anyway.

Arguably the courts are not using this discretionary power properly, but that doesn't mean the power shouldn't exist. Likewise, if some people suffer lesser consequences because of an EH plea, this is not a fault. It's something the court should be considering, and why we have humans able to critically analyse a case rather than just dish out the prescribed sentence. Well... maybe.

This post has been edited by notmeatloaf: Thu, 2 Dec 2021 - 16:16
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NewJudge
post Thu, 2 Dec 2021 - 18:20
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QUOTE (notmeatloaf @ Thu, 2 Dec 2021 - 16:13) *
Arguably the courts are not using this discretionary power properly...

How so?

s35 is applicable only to disqualification for repeat offences (i.e. "totting up"). The entire section refers only to that situation. The "normal consequences of the conviction" to which you refer and over which the court has discretion, is a disqualification of six months. When considering whether or not to exercise that discretion, s35 specifically says that the court must not consider the circumstances surrounding the individual offences (including the latest one which placed him in court) and must not consider hardship other than exceptional hardship.

I don't, therefore, understand this:

"Likewise they could apply a totting ban if it is accepted they would suffer exceptional hardship but the circumstances - for instance exceptionally poor driving, lack of remorse - mean they should be banned anyway."

The process for a defendant in court for an offence which could make him liable to a totting ban is that he is firstly sentenced for that offence. If he receives a ban for that offence alone he serves that ban and the points remain on his licence. If, however, he receives points which take him to twelve or more, he then has the opportunity to present an EH argument. There is no possibility that the court will accept his EH argument but ban him anyway because the offence was so serious.
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notmeatloaf
post Thu, 2 Dec 2021 - 18:41
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QUOTE (NewJudge @ Thu, 2 Dec 2021 - 18:20) *
There is no possibility that the court will accept his EH argument but ban him anyway because the offence was so serious.

Why?

S35 does not say that if EH is accepted then the court cannot ban the driver.

It simply says that the court cannot reduce a totting ban if the hardship is not exceptional.

QUOTE
(1)Where—
(a)a person is convicted of an offence [F1to which this subsection applies], and
(b)the penalty points to be taken into account on that occasion number twelve or more,the court must order him to be disqualified for not less than the minimum period unless the court is satisfied, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction and thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified.


I don't see why the number and type of offences isn't a part of "all the circumstances" if they are judged as more serious than an average totting driver - say, someone in court with 24 points due to multiple offences. S35 simply prohibits considering the offences to be less serious.

I agree this is not the way EH is currently applied in court - hence why we never see any reduced bans. But the legislation clearly does not support EH being an automatic get out of jail free card.
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andy_foster
post Thu, 2 Dec 2021 - 20:40
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The statute is clear that any of the offences not being serious ones is not a consideration. It seems that the courts' guidance is slightly wider than that - the seriousness of the individual offences is not a consideration - which seems fair insofar as if offences being trivial (e.g. 35 in a 30 limit at 2.a.m. on a dual carriageway with nobody around) are not a consideration then the seriousness of the offences ought not to be a consideration.

If the individual offences are sufficiently serious that the driver ought to be banned, then the court could ban him for those offences.

edit: IMHO whilst the EH system is arguably flawed, it is arguably also one of the less flawed areas of the law. Fixed penalty for 46 in a 40 limit. Same fixed penalty for 65 in a 40 limit. Police ignoring more serious offences in order to catch speeders, because speeding is far easier to prove. Private parking penalties.

This post has been edited by andy_foster: Thu, 2 Dec 2021 - 20:43


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