Following last week's news that Emma Watson received a driving ban, Sophie Clarke reflects on this as a high-profile reminder of the consequences of becoming a 'totter', the law surrounding mandatory disqualification, and the arguments that can be made to try and avoid disqualification in such circumstances.
Why was Emma Watson banned from driving?
Watson's case was heard at High Wycombe Magistrates' Court (in her absence). She was convicted of speeding (38mph in a 30mph limit), an offence that carries a minimum of three penalty points and a fine. Her recorded speed put her in the lowest sentencing bracket, and she was sentenced to three points with financial penalties of £1,044.
However, with nine points already on her licence for previous driving offences, the three additional points for speeding brought her total to 12 points. As a result, she received a six-month 'totting-up' disqualification.
The law on totting
A driver who has accumulated 12 penalty points or more for offences committed within a three-year period is known as a 'totter' and will be faced with the prospect of a 'totting-up' disqualification.
The law on disqualification in these circumstances is strict. Sections 35(1) and (2) of the Road Traffic Offenders Act 1988 ('RTOA') provide that a person must be disqualified for at least the minimum period (6 months) unless the court is satisfied, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction.
This means the starting point is a minimum 6-month disqualification (longer if a previous disqualification is considered) unless 'grounds for mitigating' can be established.
Can totting-up disqualification be avoided?
Only an argument of 'exceptional hardship' will be sufficient to avoid a mandatory totting disqualification. Section 35(4) RTOA explicitly states that the Court may only consider hardship that is deemed exceptional.
There is no precise legal definition of the types of hardship considered to be 'exceptional', and it will ultimately be a matter for the Judge or Magistrates in each case. The Sentencing Council's guidance clarifies that mere inconvenience or hardship that is not exceptional is not enough.
Loss of employment is commonly cited as a hardship that will result from disqualification. However, the Sentencing Council clarifies that this is an inevitable consequence of a driving ban for many. Whether this amounts to exceptional hardship will depend on the individual's circumstances and the impact of that loss of employment on the individual and/or others.
The Court will consider the facts and merits of each case. In many cases, the most persuasive arguments of exceptional hardship arise where it can be shown that disqualification would have a detrimental impact on dependents or other innocent parties. For example, if an individual is a sole or primary earner and has dependents such as children or parents, or has exceptional caring responsibilities, or if a business would collapse, leading to loss of employment for others. In some cases, a combination of hardship arguments might be advanced.
It is for the individual pleading exceptional hardship to prove it to a civil standard, and it will usually be necessary for the individual to give and/or call evidence. The Judge or Magistrates will likely scrutinise whether use of a vehicle in the individual's circumstances is, in fact, essential. For example, they might explore whether any employment or other journeys for which a vehicle is said to be used can be carried out by alternative means of transport (such as public transport or lifts from others).
Where the Court finds that exceptional hardship has been shown to the requisite standard, it can impose no disqualification or a period of disqualification that is less than the mandatory minimum (section 35(1) RTOA).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
