The Defendant is usually required to give live evidence on oath and can be cross-examined (questioned) in open court by the prosecutor. This can be a very stressful experience. Being well prepared, understanding the procedure in advance and being ready for the pitfalls of such an encounter can help enormously. (It is easy to give an answer in response to a question under the pressure of the court room without realising the damage that that answer could do to one’s own case). Remember that, as the Defence is trying to overturn the usual rule (ie that a 6 month ban should be imposed), the burden of proving that ‘exceptional hardship’ would be a consequence of loss of licence shifts from the Prosecution to the Defence ie the motorist bears the burden of proving his or her case making a successful outcome for the defence harder to achieve. Here is an example of a client’s case study for this type of situation.
The Magistrates have the power to find that the Defence has proved its case (in which case the court is permitted either not to order a ban or to order one shorter than 6 months). Alternatively, it could find that the Defence has failed to prove its case and order a ban of a minimum of 6 months. This will always be accompanied by a financial penalty.
The Alternative Submission
Usually clients contact us when they already have penalty points on their licences and the latest allegation, if admitted, would normally mean that their points tally will reach 12 or more. In cases where it is clear that ‘exceptional hardship’ will not apply there is sometimes another option. It is to try to persuade the court that they should not endorse points for the latest offence at all but that they should impose an immediate but relatively short disqualification: when courts impose immediate disqualifications for an individual offence they do not order points to be endorsed at the same time. Suppose, for example, a motorist has 9 points and commits an offence of speeding at 105 mph. If the court disqualifies that person for, say, 56 days it doesn’t also order points to be endorsed. This means that the motorist remains on 9 points thus the minimum 6 month ban does not come into play. In other words, although the motorist ends up with a ban it is a much shorter one than if s/he had received a penalty points disqualification.
It should be remembered that sentencing guidelines steer the courts away from this approach. The guidelines suggest that in such cases points should be endorsed to prevent the motorist sidestepping the normal penalty points disqualification procedure. However, sometimes the courts can be persuaded to adopt this approach. Please see this client’s case study by way of example.
Lengthy disqualifications can cause enormous dislocation to family and work life and is often accompanied by grave financial loss. It is worth trying to calculate the financial cost of loss of licence before deciding how to proceed in such cases. Any individual is perfectly entitled to read a few articles online and to represent him or herself in court. However, the application of the law to the facts of any given case is often far from straightforward never mind trying to ally that with an understanding of the procedure in court and then actually carrying it off all alone on the day in court. Most people will want to obtain legal advice from experts in this field of law (ie specialist motoring lawyers) to consider the way forward given the gravity of the consequences of loss of licence. If you fall into this category please don’t hesitate to get in touch as we will speak to you without charge during an initial conversation.