Totting Up and Exceptional Hardship

Hello. My name is Lisa Collins on. I'm a solicitor advocate. This weapon are lost in 20 minutes. Will be on totting up on exceptional hardship. There are many offenses, usually driving offences which carry either a penalty point endorsement or a discretionary disqualification. The list below are just some of those offenses. No insurance can carry between six and eight penalty points, driving without due care and attention. Paris between three and nine penalty points drunk in charge, either with an offensive excess alcohol or failing to provide a specimen carries 10 points on speeding can carry various points depending on the speed above the legal speed limit. All of those are the above also carry a discretionary disqualification. Now the rules on totting up our that a driver defendant becomes a tosser. It's on their license. With the latest defense, they would have 12 or more penalty points. The penalty points have to span a three year period. And if both of those criteria are fulfilled, the presiding tribunal the Magistrates should ban for a minimum off six months that set out under Section 28 off the Road Traffic Act 1991. So sometimes when a driver comes to court. It's an issue or penalty points versus a discretionary disqualification. You would ordinarily think that most people come into court would rather take the penalty points rather than a disqualification. But if, for example, they already have 10 points on their licence, they then commit a driving offence, for example, of 99 MPH on the motorway, where the speed limit is obviously 70 MPH. This camera carry between 4 to 6 penalty points or a discretionary disqualification of between seven and 28 days. If they were to be awarded a penalty points, then at the minimum that beyond their license would be would be 14 on, they would effectively have to lose their drive my sense for a period of six months. However, if they all that advocates because argue that they would rather have a disqualification, then the most that they could be disqualified would be 28 days. And in a lot of cases, when somebody lose their license for six months, they would probably lose their job. Where has potentially losing their licence for between seven days and 28 days? It may be that they could keep their job taking holiday on. It's a lot more work for, so that's really something to think about when presented with that particular scenario. However, if it is going to be the case that they are going to be a talk, they are going to lose their license. Then the Road Traffic Offenders Act of 1998 introduced something called exceptional hardship, and this allows the Magistrates to reduce the six month ban all to withhold it in its entirety. So a very powerful tool. In 2000 and 9 31,110 drivers were disqualified under the totting up provisions on approximately 1/3 of these drivers raised on exceptional hardship to reduce the ban. That isn't to say that they were always successful, but nevertheless, as I say, it's a very powerful a tool to use so the law relating to exceptional hardship. It applies to all drivers with full driving licence. If somebody comes before the court with a provisional license or no license at all, and they required 12 penalty points and unfortunately then I have to rely on exceptional hardship. A court hearing is triggered if the driver is sentenced such that his license would carry 12 points or more. So ordinarily, what happen is a driver would be sentenced that would be sent a notice of intended prosecution in the post. He would be asked to complete hits. That means form, say, whether his pleading guilty or not guilty. He's pleading guilty, he would say so sent in back back to the court, together with any letter of mitigation on his means. And then it would go before a driver's court for that to be considered. If it's just the case that he was just going to be receiving penalty points with no issues with girls to Henry guessing 12 points, then the him just be sent notification off that if, however, the Magistrates, either considering a discretionary disqualification or the number of points they awarded, took him beyond the 12 points, then he would be effectively summons to court for disqualification, to be considered on its then that he would raise his exceptional heart apartment if he was going to so consideration off the 12 points. The offenses must be committed within a three year payments, but this is quite important because it is the date of the offense on, not the date off the imposition off the points that becomes relevant and therefore, when looking at these types of cases, the Africa driver, the course even should check the offensive span less than three years because if they don't, trotting up doesn't apply. So if, for example, you have a driver who comes before the court has been summoned before the court because he's already got nine points on his licence is going to receive another three, which makes him a tosser if the first set of points were imposed on the first of June 2013. The second set three points imposed on Second of May 2040 on the third set of three points imposed on the third of May 2015 and he has nine points there in under 10 years. Let's say the new offense was committed on the first of April of 2016 then effectively, he's going to have the 12 points within the three year period. It doesn't matter if the court hearing that he's invited to attend is on the 25th of June 2016 was up texting without outside of the three year period. It's the date of the offense that is relevant and not the date of the court hearing on UN. Unfortunately, in that scenario, he would present as a daughter, I would have to be considered clearly for the six months management tree disqualification. So grounds for exceptional hardship, a disqualification counting of avoided if there are mitigating circumstances not prohibited from consideration Under Section 35 4th of Road Traffic Offenders Act 1988. So the mitigating circumstances cannot relate to either fax or off the case, and ordinary hardship cannot be taken into account by virtue of the top title. It has to be exceptional hardship. So what is exceptional hardship? And this was outlined in two different cases. First Kinds. Brennan Indicators of 1996 case. It must be something out of the ordinary, and that seems to be fairly stating the obvious, because I say it cannot just be ordinary hardships. So someone came to court said, Look, I'm gonna lose my job. If I leave my license, I'm gonna be financially myself. That would be considered to be ordinary on would not succeed on exceptional hardship argument. I'm There has to be unpleasant consequences affecting innocent at parties. And that's that out in case of Kormoran coaches in 1976 case. So, for example, if the driver has a wife or child who was receiving chemotherapy, they don't have chemotherapy. They die. The driver and his wife child live in a really remote area. There's no buses that might be acceptable for exceptional heart department. And again, the list below are is not exhaustive. But these are examples of exceptional hardship. So restriction on mobility for the driver with severe health problems. For example, maybe if somebody suffers with Sena, it just cannot get around on that. They would effectively become housebound if I didn't have a car that might be considered to be exceptional hardship friends, that threat to the job, stability off employees. So where the Dr it's effectively in charge of a number of employees and he refused to lose his license and everybody else is to lose their job. That may be considered to be exceptional hardship, although the Magistrates would want it to be considered whether or not somebody else could take over the driver's job for that period off a disqualification to prevent that from happening, and the driver works in a career with high levels of importance to the health or safety of the public. For example, in that particular case on ambulance, Driver might find himself fortunate, not losing his license. If you were able to raise that arguments on the loss of a career that, as you heard me, just like usually, if you lose your job, you become financially less well off. That's unlike you to form exceptional hardship. But it has been known where, if exceptional hardship is, are you going to be the case that the driver special lose his job, Which means he will lose his house, maybe lose his family? Although technically that would be considered to be exceptional heart, it produces. A lot of people find themselves in that situation. Sometimes it's the much strikes with a particularly good mood. Maybe if he has an exceptional advocate on, If the driver is very, very key, then he may well not lose his license under that argument. But as I say, it's really gonna come down to the Magistrates and how they're feeling on the day making the argument that there are really two weights of doing this either. The Advocate makes submissions on behalf of the driver and produces evidence off the exceptional hardship on. Then the defendant is asked for life to confirm the truth of submissions All. And certainly the second way of doing things is how it's something. Michaels the defendant, takes the oath and gives that evidence of their circumstances and produces on the documentation Ondas then cross examined by the prosecutor on it. For example, it's not gonna really be in love just for the driver to say it's gonna have this effective. I lose my license that usually have to produce some form of evidence. So take out driver whose wife child is really sick with. And because chemotherapy they're probably to be evidence off doctor's appointments, confirming that regularly they have to have chemotherapy. And there would also need to be evidence that there's no bus routes in their particular area, that they couldn't take the bus or if there was a bus route while the particular person couldn't take the bus, maybe because they were too sick. That's maybe something from the doctor. The usually has to be backed up with evidence, so possible outcomes if a driver is successful. Andan exceptional hardship argument is found. The sentencing court conniver. Reduce or impose a no disqualification at all, and prosecution costs are still wanting to be imposed if successful, just as a defense costs order can be refused Now ordinarily, in cases where a defendant is successful after trial. Usual case the prosecution costs are masterful onder. If they're not legally, ain't it, then that they comply for defense costs order. However, in cases of exceptional hardship, it's more seen as that they fall on. The driver falls on the mercy off the court. So it's not what, really, in case of winning as it would be in a trial, it's just that the court had taken pity on them, have found exceptional hardship. Therefore, in those cases, prosecution costs are still likely to be imposed. As I say, defense costs can be refused because ordinarily in these types of cases is going to be very, very difficult to secure a legal aid on. Therefore, most people who come before a court raising exceptional hardship compliments usually do so usually are doing so. I want a private paying basis if the development, if the driver is successful, he cannot rely on the same argument. Should he find himself in the same position for the following three years on the court really should make a note off the exceptional heart department that was found to be successful on this particular case. So if, for example, exceptional hardship is found on our driver whose wife child is very sick with cancer, that should be noted. And if they do find themselves in the unfortunate situation of being back for care at the court again facing disqualification, then they can't use the argument even if their wife or child is still in the same position. They're tough to use something else or, more likely, take the points that sort taking disqualification that if the argument is unsuccessful than the driver, will be banned from the minimum mandatory period off at six months on. Obviously, the usual cost implications of prosecution costs, disqualification periods in respect in respect of exceptional hardship arguments is obviously a minimum off six months, although Magistrates do you have a discretion to increase that? If they wanted to have to say in all the cases I have dealt with, if the driver doesn't have any disqualifications, proceed in this first totting up period, then the much lakes usually just imposed six months disqualification. If, however, the drug has another disqualification of over 56 days in the last three years, then minimum is 12 months, 12 months under totting up onda. And if the driver finds himself in the unfortunate situation of having to disqualifications in the last three years, then the minimum squalid fication is for two years. That's is the end, or that this webinar I have found it useful. Thank you very much.