Nathan first contacted me when he was facing two allegations of using a mobile phone when driving. He already had 9 penalty points endorsed on his driving licence and was facing, if convicted, a further 12 points (ie 6 points for each offence). Most motorists who have 12 or more points endorsed expect to be disqualified from driving for 6 months. However, this is a minimum figure; if someone has 21 points they could reasonably expect to be disqualified for up to 12 months. Nathan’s case was listed for a trial in 2 weeks time!
How should Nathan have pleaded, ‘Guilty’ or ‘Not Guilty’?
Nathan had been accused of using his phone which he denied. He did admit to touching his phone. I advised Nathan that in accordance with recent changes in the law this meant that the correct pleas for him would be ones of ‘Guilty’. An email was sent to the court explaining that upon receiving legal advice he wished to plead ‘Guilty’ and that all witnesses for the prosecution should be stood down but that time should be set aside for the defence to make an ‘exceptional hardship’ submission. The court responded quickly acknowledging receipt and confirming that time would be set aside. It was important that the court was given advance warning of the change of plea as, had they simply been advised of this on the day listed for trial, considerable extra expense and inconvenience would have been incurred without good cause (as the prosecution would have had its witnesses at court and the court would have set aside half a day for the trial). Thus, by giving advance notice to the court of the change of plea the court would likely be favourably inclined towards Nathan before hearing his exceptional hardship submission (because he had acted considerately by notifying them).
The Initial Consultation – Advice Given
The only way to avoid an extended disqualification, for perhaps up to a year in Nathan’s case, was to successfully make a submission of ‘exceptional hardship’. I took full instructions on Nathan’s construction business. He did everything from working on site personally to transporting equipment and materials to obtaining new contracts. He was a one-man management team to whom all trouble-shooting duties fell. He had a group of 4 workmen who relied upon him for all of their work. His case was that should he be banned for 6 months or more that his business would fail and his workmen would lose their jobs.
All Defendants seeking to establish that ‘exceptional hardship’ would befall them or others were they to be banned for 6 months or more should expect to have to give evidence on oath and to be challenged (cross-examined) in court by the court and / or the prosecution. It is only in this way that the court can make an informed decision as to the merits of the defence case. Nathan had been carefully advised as to how best to put his case forward and warned of the kind of questions he would likely face. Usually the client will give evidence on oath and then his lawyer will make submissions trying to persuade the court not to disqualify. This procedure was adopted in this case.
The Court’s Finding
The court considered the evidence and ruled that ‘exceptional hardship’ had been made out. They disqualified Nathan for two months only (as the evidence had been that his business could survive such a short ban). This was actually the perfect result for Nathan as it meant that his licence would be wiped clean of points. If he had not been banned at all (which is the norm in cases in which the court makes a finding of exceptional hardship) the points would have remained on his licence and, given the amount of driving he does, Nathan was worried that he would not be able to avoid further penalty points. If that had come to pass he would have been prevented from running the same exceptional hardship arguments again (as the same grounds cannot be used twice within 3 years) and he would have had no possibility of avoiding an extended ban. Thus, in fact, a 2 month ban just happened to be, literally, the ideal result for Nathan as he could resume driving thereafter but with a licence wiped clean of points!
He said (to me) following the outcome,
‘I would have paid £10,000 for that result’.
The reader should rest assured he was charged considerably less!
If you would like my help to assess and prepare your ‘exceptional hardship’ submission please don’t hesitate to get in touch.
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