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How do I avoid Disqualification?

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How do I avoid Disqualification?

I have 12, or more, penalty points.  To avoid a ban I must prove ‘Exceptional Hardship’ would occur.  How can I prove this?

The Law

The law provides that if you incur 12 or more penalty points, for offences committed within 3 years of each other, you will become liable to a penalty points disqualification of a minimum 6 months duration.  It makes no difference whether
you reach the total of 12 points by committing 2, 3 or even 4 offences.  If you reach the total of 12 the usual consequence
is a 6 month ban (also known as a ‘totting up’ disqualification).  Sometimes clients believe that by the time their court cases are heard some points will have ‘dropped off’ and they will have fewer than 12.  Please note that it makes no difference at all how many points you have at the time of your hearing; the relevant factor is whether you reached the total of 12 points for offences committed within 3 years of each other.

I have 12 or more penalty points.  What should I do now?

Let’s assume you are on 9 points and that you have just committed a further offence punishable with 3 more.  If you are offered a course as a way to avoid prosecution this has the advantage that, assuming you comply with all of the requirements, you will not have further points endorsed on your licence. This would mean that you would remain on 9 points and avoid a ban.  Alternatively, you might be offered a fixed penalty, for example, of a fine plus 3 points. However, once the police realise you are on 9 points any Fixed Penalty offer will be retrospectively withdrawn and you will then have the inconvenience of trying to claw back the payment you had made.  The prosecution process would continue and you would expect, in due course, to receive a Single Justice Procedure Notice.

I have received a Single Justice Procedure Notice.  What should I do now?

Assuming you wish to admit the offence you should indicate a ‘Guilty’ plea.  If the endorsement of further penalty points means you will reach the penalty points disqualification threshold there is usually no point in trying to avoid court attendance as once the court realises you face a penalty points disqualification they usually require you to attend court anyway (as they don’t ban people without giving them the opportunity to attend court).  You should note that even in cases in which the Defendant opts not to attend court the court retains the power to require attendance in an appropriate case (such as where disqualification is being considered.)  Therefore, you would normally indicate that you wish to attend court for sentence (as you know the court will consider a ban).  The only way of avoiding a 6 month ban, if you have reached 12 points, is by persuading the court that ‘exceptional hardship’ will result.  It is worth, therefore, endorsing within the mitigation section of the Notice (if you intend to make an exceptional hardship submission) that you will seek to prove that ‘exceptional hardship’ will result if banned.  There is usually no real point in setting out further detail of the mitigation at this stage on the Notice.

What is Exceptional Hardship? 

If you can prove that Exceptional Hardship will result from a penalty points disqualification then the court will have a discretion not to ban you at all, or, to ban you for less than the minimum 6 month period.  In practice, it is uncommon that a court opts for the latter option; it is usually a case of all or nothing.  All motorists will suffer inconvenience from a ban.  Some will suffer hardship, but, only a minority will suffer exceptional hardship.  This is because the bar has been set high as, otherwise, most people would succeed in avoiding such a ban.  The most common argument is that a motorist will lose his or her job and that the partner and dependents will all suffer from a disqualification.  Depending on the extent of suffering and the individual circumstances sometimes such arguments do succeed.  However, the frequency with which such arguments are put forward sometimes means the court will not view such circumstances as ‘exceptional’ at all.  Therefore, it is crucial to understand how best to prepare and present your case if you are to have the best possible chance of succeeding at court.

How can I maximise my chances of avoiding a ban?

Firstly, you need to understand whether the consequences of a 6 month driving disqualification in your situation are likely to be accepted by the court as amounting to exceptional hardship.  You should be mindful of the point made above that loss of livelihood alone is commonly put forward and is equally commonly rejected as not causing ‘exceptional hardship’ for that very reason (ie because it is common).  However, you need to assess not simply the consequences to yourself but also to your dependents and, indeed, to all of those who depend on you such as employees, for example, or people for whom you care.  Sometimes it might even be possible to make a case that the suffering of clients, customers or even creditors could be a relevant factor in support of your case if, for example, you provide a service upon which clients depend and which, for some reason, cannot be replicated by another.   

You will also need to consider how best to knit your case together.  You should expect to be questioned by the prosecution and / or the court as the burden of proving that your case surmounts the high hurdle of ‘exceptional hardship’ rests upon you, the Defendant.  Therefore, you should be prepared for the type of questions you will probably be asked so that you do not inadvertently give an answer which could jeapordise you chances of success.  Even though your lawyer can sum up the case for you to put it at its most persuasive s/he might not be able to save your case if you have scored an own goal during your testimony!

Conclusion

Many motorists face loss of livelihood with all that that entails for them and their immediate dependents including, potentially, loss of home.  Sometimes, a Defendant will face loss of an entire business which may have taken years to build.  Sometimes,they will need to drive to care for elderly parents. There are innumerable reasons a motorist might require his or her licence.  A court will usually test the evidence to see if any of the claimed consequences can be mitigated or circumvented.  This is where a Defendant must be careful as giving the ‘wrong’ answers in court could result in the court rejecting the Defence case.  Whether the combination of factors in any given case is adjudged to amount to exceptional hardship may well depend on how well the case has been prepared and how persuasively it is presented in court. 

If you face the prospect of loss of licence and wish to understand how best to assess, prepare and present your case you may wish to obtain expert advice from lawyers who specialise exclusively in this field.  You can read more about how to choose a motoring offence solicitor for your case by clicking the link.

 

There is a lot to consider if your livelihood depends upon saving your driving licence.  If you would like to speak to an expert for a no-obligation initial discussion you are most welcome to call.

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