Where a driver reaches twelve penalty points in a three year period the law requires that an immediate ban of at least six months should be imposed. Such a disqualification from driving will often exact a devastating impact upon the driver concerned.
If the accused has had another disqualification of over 56 days in the last 3 years, then a totting up disqualification is for a minimum of 12 months. If he or she has had two disqualifications in the last 3 years, then the minimum disqualification is for 2 years.
Thankfully, the law provides a means through which a driver affected by ‘totting up’ can avoid disqualification.
If such a driver can display that ‘exceptional hardship’ would result if they were to lose their driving licence then it is open to the court to refrain from imposing disqualification or to impose a shorter period of disqualification.
In order to establish that exceptional hardship would prevail in the event of disqualification it is clear that the hardship in question must be severe and beyond that which would normally be suffered by depriving an accused person of his/her licence.
It is for an accused person to establish the severity of the hardship through the leading of evidence and for the court to assess whether the hardship is exceptional.
The case presented by the defence in support of exceptional hardship must be presented with thoroughness and attention to detail.
Indeed the Appeal Court in Scotland has repeatedly observed that a court should examine very closely any suggestion of exceptional hardship and should only hold it established on the ‘clearest possible evidence’.
At the risk of repetition it is important to stress once again that any old hardship will simply not suffice. For example, the simple fact that a driver may lose his job if disqualified is unlikely to be regarded as exceptional and the court will more often than not take the view that this was a reasonably foreseeable outcome of accumulating twelve penalty points within three years.
The court is more likely to be swayed by the causation of hardship upon others as a consequence of the loss of a licence. For example, such ‘reflected hardship’ may impact upon spouses, children or other family members.
That said, there are no hard and fast rules as to what may amount to exceptional hardship and every case will turn upon its own circumstances.
The following are examples of cases where exceptional hardship has been found to exist resulting in the avoidance of a period of disqualification:
Case Study A
- Accused A was liable to totting up disqualification. He resided with his father and elderly grandmother. His father had terminal cancer and was unable to drive. He required to be taken to frequent hospital appointments at a hospital some fifteen miles away from the family home. He was in receipt of a plethora of medication and was unable to attend at his local pharmacy to collect these drugs. His son, the accused, was responsible for transporting his father to the hospital and for picking up his medicine from the chemists. No other family members lived nearby and the accused father’s position would have been detrimentally impacted upon if his son lost his licence. Exceptional Hardship was established.
Case study B
- Accused B led evidence to the effect that he was a self-employed plumber whose licence was essential to his ability to work. Evidence was led that if he lost that employment not only would he be unable to pay his own mortgage for the house in which he and his partner resided but moreover, he would be unable to pay a second mortgage on a house in which his elderly mother resided. His elderly mother was severely arthritic and relied upon her son to transport her to and from hospital appointments. The accused’s ability to exercise contact with his six year old daughter in another town would also have been severely frustrated if he was to lose his licence. Exceptional hardship was ultimately deemed to exist by the court.
Case Study C
- This is an example of the Court of Appeal taking into account the prevailing financial climate. In this case it was decided that exceptional hardship prevailed. Here C’s business would cease to function and several employees would lose their livelihoods if he lost his licence. The court had regard for the reflected hardship that would befall others of the driver lost his licence and the fact that in the prevailing financial climate it would be very difficult for his employees to find new jobs.
Case Study D
- Here, D, a single parent had two children with severe medical problems. One had cerebral palsy and another had mental health difficulties. She required her licence to run her children to and from school and to hospital appointments. Loss of her licence would make it practically impossible for her to do this. Exceptional hardship was found to exist.
Case Study E
- Here the accused ran a business on behalf of his wife. If he was disqualified there was a strong possibility that he would lose his job and that his family would, as a consequence, lose their main source of income. This would in turn cause ‘reflected hardship’ to his wife and children who faced the risk of losing the roof over their head. The court decided there was exceptional hardship.
Case Study F
- Here the accused was a self-employed consulting engineer with a cash flow problem and a large overdraft. He was responsible for three self-employed contractors who would lose their employment if he was disqualified. It was held that six months disqualification would result in the contractors losing their jobs. There was exceptional hardship so the disqualification was reduced to three months.
The professional and proper presentation of an exceptional hardship argument can make the difference between success and failure. We highly recommend that you instruct an expert road traffic lawyer to conduct your defence.
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