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Disqualification under the ‘totting up’ principle is an area of criminal law that affects a large number of drivers and, for many, it is their first and only experience of the criminal justice system. According to the DVLA, in February 2017 there were almost 10,000 drivers still on the roads with 12 or more points on their licence, with one driver racking up 62 points (Auto Express, 24 February 2017). This number represents a 45% rise from 2015.
In the majority of these cases a driver has been allowed to keep their licence by successfully arguing that to lose it would result in ‘exceptional hardship’.
An exceptional hardship defence is a complex legal argument requiring a defendant to show that losing their licence would result in ‘something out of the ordinary’. A recent example concerns cricketer Andrew ‘Freddy’ Flintoff. Mr Flintoff was spared a driving ban when the Magistrates’ Court accepted that a disqualification would amount to exceptional hardship because of the effect on others who rely on his extensive charity work, the privacy of his children, and an upcoming television series.
But what of the average driver who cannot rely on their extensive charity work or celebrity status to support such a defence? Keoghs recently successfully argued exceptional hardship for a defendant who, having already amassed 11 points on his licence, was facing a ban following a charge of careless driving.
The defendant worked in construction and would often be sent to work on oil rigs offshore or national contracts across the UK. The defendant’s work patterns meant that he would often be working hundreds of miles away from home. The defendant was the sole breadwinner, his partner did not claim any state benefits and they had a nine month old daughter at home. Furthermore the defendant and his partner had recently entered into a mortgage on their first family home.
We obtained letters from the defendant’s employers detailing the difficulties the defendant would encounter if he could not drive, along with copies of his mortgage agreement and an annotated map illustrating the length and breadth of the country he was required to travel for work and provide for his young family. After considering the evidence, the Magistrates’ Court commented;
“We are not going to disqualify you. Your present job details would mean you would lose your livelihood, you do live in the middle of nowhere and it simply isn’t practical for you to use public transport and you are not in the position to employ a chauffeur… Real hardship would be caused to your partner and young child’.
The defendant was not disqualified from driving in this case. Instead his licence was endorsed with six penalty points (taking his total to 17) and he was ordered to pay a fine, victim surcharge and costs. Most importantly, he was able to continue working and providing for his family as before.
The suggestion from this example, and that of Mr Flintoff, is that an exceptional hardship defence is more likely to succeed when one can show that banning the defendant from driving could cause hardship to someone other than the defendant (Cornwall v Coke L.R 519). The most commonly used example of this would occur when they are the sole carer of a child; elderly parent or sick relative but this could also occur if the loss of a licence would have a detrimental effect on the defendant’s employees.
Despite remaining a difficult defence to raise, this recent case provides a valuable insight into the magistrates’ interpretation of what amounts to exceptional hardship and how best to address such issues at court.
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