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Penalty Points Bans (and how to avoid them) 

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From Speed Camera to Notice of Intended Prosecution

Oh no! You notice the dreaded flash of a speed camera just as you’re driving by.  You’ve an uneasy feeling it was triggered by your car but hope against hope that it wasn’t because this would be your 4th speeding ticket within 3 years.  In other words, you will be facing a penalty points disqualification!  Many motorists know that if they have 12 or more penalty points endorsed on their driving licence for offences committed within 3 years of each other that they face a minimum 6 month driving ban.  You keep your fingers crossed but within the next few days a Notice of Intended Prosecution drops through the letterbox.  It was your car after all.  What should you do now?

Do I have to identify the Driver even if it was me?

The NIP is sent together with a Notice requiring the registered keeper to identify the driver.   You should bear in mind that failure to complete the Notice appropriately and return it within the 28 day deadline itself amounts to an offence which is punishable by a fine and 6 penalty points.  (If the registered keeper was not the driver the registered keeper would be required to identify the driver and the driver would then be sent a Notice requiring him or her to identify the driver).  So, you may find yourself in the position to have to identify yourself just to enable the police to prosecute you.

Exceptional Hardship

Assuming you admit the offence in due course you will receive a notification requiring you to attend at a Magistrates Court (as the courts don’t impose penalty points disqualifications without at least affording the motorist the opportunity to attend.)  You will then find yourself facing a bench of Magistrates who can be expected to impose a driving ban of at least 6 months unless you can persuade them that you, and / or those dependent on you, would thereby suffer ‘exceptional hardship’.  How do the courts interpret this term?

 

There is no statutory definition of ‘exceptional hardship’.  However, the court should be guided by both case law and the sentencing guidelines (which are themselves based upon case law).  Many motorists believe that if a ban would mean loss of job that this automatically amounts to ‘exceptional hardship’.  Some (lay) magistrates seem to believe that loss of employment alone cannot amount to ‘exceptional hardship’.  Neither position is an accurate summary of the law.  Loss of employment may result in ‘exceptional hardship’ depending upon the consequences for the offender and / or others.  Undoubtedly, in practice loss of employment often forms an important element of ‘exceptional hardship’ submissions although there are also circumstances that don’t involve loss of employment at all that could be considered to cause ‘exceptional hardship.

At Court

The magistrates chosen to preside in motoring cases are often lay magistrates ie they are not qualified lawyers but volunteers who sit as part of a bench of magistrates.  Thus the court clerk often plays an important role as it is his or her duty to advise the magistrates on the law and procedure as appropriate.  (If there is a magistrate sitting alone s/he will be a district judge ie a fully qualified professional judge.)  The Defendant should bear in mind that, in the ordinary course of events, s/he  will normally be required to give evidence on oath in support of any exceptional hardship submission.  This can be daunting for anyone who isn’t accustomed to being cross-examined (ie being asked questions on oath in open court).

What if my case is borderline?

There are many cases that inevitably are not clear cut either way.   What factors will determine such cases?

There is, inevitably, a degree of fortune involved as there are some variables that cannot be controlled by the defence, for example, whether the magistrates on any given occasion are harsh or lenient.  Care in case preparation is clearly very important.  This includes explaining to the offender the strengths and weaknesses of his or her own case.  For example, it is very easy for Defendants to score an own goal by saying something on oath which fails to give the desired impression to the court (or by omitting to say something they had intended to say due to the pressure of the occasion).  Hopefully, the Defendant will have been carefully advised in advance by his or her lawyer and fully understand how best to present the case.  Finally, of course, the defence lawyer has the opportunity to sum up and the more persuasive the closing address to the court the better the chances of a positive outcome.

 

So, each case turns on its own facts and upon how well it is prepared and presented.  If your licence, or that of an employee, is at stake you may think that investing a great deal of care in preparation for the hearing is only sensible.

Get in touch for an initial chat

If you, or anyone you know, is at risk of loss of licence through a penalty points disqualification please feel free to contact me for an initial discussion, without obligation, as to whether the case may be worth contesting.

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