points still don't mean
prizes
According to figures recently released by the Driver
and Vehicle Licensing Agency (DVLA),following a Freedom of Information
request by BBC Radio Stoke,
more than one in four drivers who accumulated 12 penalty
points on their driving
licence in
Staffordshire and Cheshire last year avoided a driving disqualification.
There were 235 drivers in Cheshire and
216 in Staffordshire allowed
to continue driving despite reaching the 12 points limit. Indeed, one driver had amassed 27
points and ten motorists
had more than 20 points.
How did these motorists manage
it?
what does the law say?
Section 35 Road Traffic Offenders Act
1988 provides that a motorist who accumulates 12 or more penalty
points in a three-year period shall be disqualified for a period of
six months unless the court finds that there are 'mitigating
circumstances'. If the court is satisfied that there are
'mitigating circumstances' then the court has a discretion not to
disqualify the motorist at all, or to disqualify them for a shorter
period.
what is a mitigating circumstance?
Section 35 stipulates what
cannot amount to a mitigating circumstance.
The court cannot consider anything
that tends to make the motoring
offence less serious. A motorist could not go into court
for example and argue that they should not be banned for six
months because they were 'only' travelling at 37 mph in a
30 limit or that there were no other cars on the road at the
time. Similarly the court cannot consider anything that has
been argued in the last three years. Finally the court cannot
consider hardship other than 'exceptional hardship'.
In practice any motorist who wishes to advance an argument of
this nature will have to go into the witness box and give
evidence about the affect a driving disqualification would have on
them and their family/business, etc. There is no legal test
for exceptional hardship - although the motorist must persuade
the court on a balance of probability that a disqualification
would cause 'exceptional hardship'.
In our experience, courts adopt a robust approach when
considering these arguments and professional advice is
vital. Typically the loss of a job will not be sufficient,
although it could be depending on the circumstances. The court
will look at the affect a ban might have on a motorist's family as
well as the individual. Our Motoring Offences team has
represented motorists who would have lost their job in the event of
a ban and and if they had lost their job their families' finances would have been such that the family could
not have
afforded the mortgage
payments and would
have had to have
moved house
and have
their children taken out of school.
The team also has experience of representing those who need
their licences to assist family members who need to go to hospital
/ other health related appointments. One client in the Thames
Valley needed to take her mother to hospital each week and was the
only relative in the area. The alternative was for an elderly lady to
take public transport to the hospital (which also happened to be a
long way from where she lived because of the specialist nature of
the treatment.) The court took a sympathetic view in those
circumstances.
what if I could not argue 'exceptional hardship'
That is not the end of the
matter.
The important point to note about section 35 is that it
prescribes what cannot be taken into account by the court rather
than what can be.
Our Motoring Offences team has
successfully argued in the Magistrates Courts
and in the Crown Court
that the successful completion of a driver improvement
course can amount to 'mitigating circumstances' because it is
evidence of the rehabilitation of the motorist.
Many recent clients have voluntarily attended such courses that
have been tailored to their own circumstances and designed to
address any historic driving faults and problems. These
courses include an audio presentation at the start of the day and
practical, intensive on-the-road instruction. We have been
impressed with the responses we have received from motorists who
have attended these courses and the courts are now beginning to
look favourably on motorists who successfully complete the courses
- thereby demonstrating a willingness to improve their standard of
driving.
So for any motorist about to reach 12 points, they should obtain
legal advice as quickly as possible. It will not be easy to
avoid a disqualification.
View further information on sentencing and
mitigation.
