Totting Up / Exceptional Hardship

One of the most common forms of disqualification imposed by the Courts in Scotland relates to the accumulation of penalty points for repeat offences. Section 35 of the Road Traffic Offenders Act 1988 requires where a person is convicted of an offence involving endorsement and the number of penalty points to be taken into account number twelve or more, the Court must order him to be disqualified for the minimum period, namely six months if there is no previous disqualification to be taken into account.

This minimum period is increased according to the number of applicable previous disqualifications to be taken into account, one year if one, and two years if more than one.

The Court can refrain from imposing a totting up disqualification or reduce the minimum period if, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction and thinks fit to order him to be disqualified for a shorter period or to not order him to be disqualified.

This is typically referred to as exceptional hardship or mitigating circumstances. It should be noted that the Road Traffic Offenders Act 1988 specifically excludes submissions based on circumstances that are alleged to make the offence not a serious one, hardship, other than exceptional hardship, and similar arguments that may have been presented to the Courts in the preceding three years.

Before embarking upon an exceptional hardship submission, careful consideration should be given to the terms of Section 37(1A) of the Road Traffic Offenders Act 1988 which permits the Court to impose a short term ban in appropriate circumstances. Such a disqualification is for a fixed period shorter than 56 days which will circumvent the totting-up provisions. The attitude to short term bans varies widely throughout Scotland and our expertise and judgment will ensure the right submission is chosen to ensure the best possible result is obtained.

Section 34(1) Road Traffic Offenders Act 1988

The Road Traffic Offenders Act 1988 makes provision, in certain circumstances, for the Court to refrain from disqualifying in respect of an offence carrying obligatory disqualification or to refrain from endorsing a licence in respect of an endorsable offence. The provisions also permit the reduction of a statutory minimum period of disqualification in circumstances where special reasons have been upheld.

Special reasons should relate to the offence itself rather than the personal circumstances of an accused.

The consequences of a period of disqualification, for example loss of employment, etc., are not relevant to special reasons submissions and this type of argument should be presented under the exceptional hardship provisions.

The best way to understand the definition of special reasons in Scotland is to view the concept as a mitigating or extenuating circumstance which falls short of an absolute defence. An accused is not precluded from arguing that the circumstances of the alleged offence constitutes a full defence to the charge and then, in the event the Court makes a finding of guilt, presenting the circumstances as a special reason with a view to securing a reduced disposal. Often there is a degree of overlap between special reasons and defences presented to the Court in connection with road traffic matters.

The onus is on the accused to establish special reasons on the balance of probabilities.

Common examples which Michael Lyon Solicitors Limited have successfully argued in Scottish Courts relate to cases involving medical emergency, laced drinks and, perhaps the most common, when a driver seeks to rely upon an assurance from the owner of a vehicle that an appropriate policy of insurance is in force. The imminent threat of violence or injury can also allow serve to exculpate a driver when a vehicle has been driven in illegal circumstances. It is important to note that the driving involved cannot continue beyond the time at which the danger ceased to exist. This type of argument can be presented under the defence of necessity and, if unsuccessful, then under the special reasons provisions.

The current readiness of Police Scotland to issue fixed penalty tickets without giving full consideration to all the surrounding circumstances can create some remarkable instances of special reasons.

We recently represented an accused who was charged with speeding whilst transporting his heavily pregnant wife to the maternity unit. Notwithstanding the clear urgency of the situation, the Police found the time to issue a fixed penalty notice whilst the poor passenger was suffering extreme labour pains. We are happy to report that the case was eventually deserted when the matter was cited for Court.

Whether the Court is persuaded to uphold a special reasons submission will depend upon a number of factors. The most obvious is that the reason to be adduced must not, in law, amount to a defence to the charge and must be directly linked to the commission of the offence. A distinction requires to be drawn between circumstances that relate to the offender and those that relate to the offence. It is this latter category that is relevant to a special reasons submission.

Special reasons have always been narrowly construed by the Courts in Scotland as they effectively excuse the commission of a road traffic offence by way of removing the associated penalty of endorsement or disqualification. These cases proceed in a similar manner to a criminal trial and evidence should be lead in support of the special reasons submission. The Court needs to be satisfied on the balance of probabilities and the exercise of discretion in favour of an accused should only be exercised in clear and compelling circumstances.

The Outcome of a Successful “Special Reasons” Submission

Concerning Points

If a special reasons submission is to be argued in respect of an offence that involves obligatory endorsement, then, if successfully argued, the Court will refrain from endorsing the driving licence with any penalty points. It cannot impose a lesser number of points and it is therefore an “all or nothing” situation.

Concerning Disqualification

It should be noted that where the offence involves obligatory disqualification the position is somewhat different on the basis it is open to the Court to either refrain from imposing a period of disqualification or reduce the length of the appropriate driving ban. The Court’s decision will be influenced by the substantive offence and the associated merit of the special reasons submission.

There is a difficult balance to be struck between various competing interests when a Court comes to consider a special reasons submission. Public safety concerns are key. The Court may be reluctant to excuse a drink driver from punishment unless the special reason connected to the commission of the offence is particularly pressing. The Court will always look to alternative options open to an accused. The majority of road traffic offences in Scotland involve the physical act of driving and, if there was an alternative open to an accused, for example the emergency services, or the situation lacked the requisite degree of urgency, the Court will not be easily persuaded to uphold a special reasons submission.

Contact a Specialist Road Traffic Offence Solicitor

There is an abundance of case law surrounding the treatment of special reasons by the Scottish Courts and our knowledge and expertise in this area can make the difference between a successful special reasons submission and a lengthy period of disqualification. It is also of note that English cases can be relied upon on a persuasive basis and we have access to comprehensive legal databases which will ensure that any supporting case law from throughout the UK will be sourced and relied upon in support of your proposed special reasons submission.

These are defence orientated laws and our specialism in defending motoring prosecutions in Scotland could be the key to unlocking these provisions to your advantage. Michael Lyon Solicitors Limited always provide free initial advice and would be delighted to assess your prospects of successfully arguing special reasons within the Scottish Courts.

It is important to consider the ramifications of previous penalty point endorsements on a driving licence, particularly where there is the danger of disqualification under the totting-up procedure. Section 29 of the Road Traffic Offenders Act 1988 provides for the penalty points that can be taken into account by the court.

Subsection 2 states that offences that have resulted in endorsement of penalty points (such as speeding and careless driving) committed more than 3 years before a new offence are discounted.

The crucial aspect, therefore, is that the date of the offence is relevant for computing the “live” penalty points, not the date of conviction/date of endorsement which is also noted on a driving licence counterpart.

Example

So if a driver has 9 points (by way of three Fixed Penalty matters or, for example, a careless driving or no insurance conviction that has resulted in merely points being imposed) and a new alleged offence is committed 2 years and 51 weeks after the first points were endorsed, then the driver is subject to disqualification under totting-up regardless of when the case is concluded.

Simply delaying the case in court will have no effect. It is resultantly vital that the charge is properly challenged and exceptional hardship argued if necessary. This is where the representation of an expert road traffic solicitor can make the vital difference in avoiding a driving ban.

• If unfortunate enough to be disqualified under the totting-up provisions, at the end of the ban (usually 6 months) the licence is returned with the penalty points having been removed.

• After 4 years, penalty points can be completely removed from a driving licence counterpart by returning same to DVLA.

• So whilst points are counted on the licence for 3 years, the actual endorsement must remain for a further 12 months.

One must also be wary of the rules surrounding offences committed on the same occasion. This is covered by s.28(4) of the 1988 Road Traffic Offenders Act.

The basic principle here is that the court should consider the appropriate number of points to be imposed in relation to each offence, but only order that the highest of these is the number of points endorsed on the licence.

So in a situation where sentence is to be passed on offences of speeding (3-6 points) and driving whilst uninsured (6-8 points) committed at the same time, it is the points attributable to the insurance charge that will be added to the licence. This, of course, is dependent on the court being persuaded to refrain from exercising its discretion to disqualify for either of these offences.

It should be noted that the court does have the power, under s.28(5) of the same provision, not to bind itself by s.28(4) and instead to aggregate the points on all charges. This should only be utilised in exceptional circumstances

We would always suggest that advice should be sought from a reputable specialist motoring lawyer should you have any query regarding your driving licence or a pending endorsement.

There has however in recent times been a greater acceptance that short term disqualifications can offer an alternative to a six month disqualification where the circumstances relating to the accused fall short of being truly exceptional. In a totting-up scenario, we always advise clients that any disqualification less that six months can be considered as positive.

It should be noted that in the event the Court is persuaded to impose a short term period of disqualification, your driving licence will not be wiped clean by virtue of this type of ban on the basis that the disqualification is imposed with reference to that individual offence rather than on a cumulative basis for repeat offending.

A successful exceptional hardship submission can in Scotland result in a driver retaining his licence whilst subject to 12 or more points. We have dealt with cases where our clients have continued to driving whilst subject to 20 penalty points.

The key to these cases is preparation and presentation. If you are facing a totting-up scenario, proper consideration needs to be given to the probable consequences and thereafter we can advise whether there is an arguable exceptional hardship case or whether it would be more pragmatic to request a short period of disqualification.

Exceptional hardship must be found in order to entitle the Court to disqualify for less than the minimum period prescribed by law. Clearly, the more persuasive the submission, the greater the reduction in the period of disqualification. For the Court to refrain from imposing a disqualification, a strong and cogent argument needs to be presented to the satisfaction of the Court.

Get Legal Advice from a Specialist Road Traffic Defence Solicitor

A vast amount of legal authority has developed over the years and our specialist knowledge of road traffic law in Scotland will maximise your prospects of successfully persuading the Court to refrain from imposing a totting up disqualification.

In order to be persuasive, all submissions should have sufficient vouching and witnesses should be called to give evidence in support of the defence argument. In our experience it normally takes around two months to properly prepare a case for proof and the Court will always permit reasonable continuations to ensure sufficient preparatory time is afforded.

Scotland has always adopted a strict approach to interpreting the provisions relating to exceptional hardship and our counterparts the other side of Hadrian’s Wall do appear to have adopted a rather more liberal approach. Whilst the hardship that would ensue following a disqualification from driving may feel exceptional, for example redundancy and loss of family home, Courts in Scotland have always been more interested in third party hardship. That said, we are aware that the current economic climate is a relevant consideration and the High Court in Scotland have specifically ruled that the credit crunch and associated difficulties are matters which can properly be considered within the realms of exceptional hardship.

The Court will also give consideration to submissions based on compassionate grounds where the driving licence allows an accused to properly care for a dependant family member.

Whilst we are always keen to point out that the term “exceptional” is interpreted by the Courts as something out of the ordinary, the standard is by no means unattainable and it is very much for the Court at first instance, typically a Justice of the Peace Court, to consider the evidence and make an appropriate ruling.

The legal authorities are clear that no hard and fast rules exist in this area and the success of any submission will always depend upon how the hearing plays out in Court.

Our skilled advocacy and experience in this field can make the difference between success and failure.

Another interesting line of submission relates to cases where the hardship extends beyond the term of the disqualification. Good examples include:

• Professional drivers who may struggle to obtain future employment, perhaps due to age or insurance implications.
• It can also be argued that the loss of employment of a highly skilled employee can result in exceptional hardship on the premise that the Company or employer would suffer commercial consequences. This is often referred to as loss of employment of an irreplaceable employee.

It is important to note that the Court should not use too high a test when considering this type of submission and the appropriate standard of proof is on the balance of probabilities.

We much prefer to be successful at the first time of asking however on occasion we do have to seek recourse to the Sheriff Appeal Court. Our recent run of success at the appeal court continued with the case of Martin Waine v P.F. Glasgow 2016 reported at SAC (Crim) 19 which reiterated the accepted legal proposition that the court should not engage in speculation and look behind unchallenged evidence in exceptional hardship cases.

We dealt with this case as an Exceptional Hardship Proof. The Justice of the Peace misdirected himself and we successfully appealed. Click on the link to read more: