Totting-Up and Exceptional Hardship

If you get 12 points within 3 years the court must disqualify you under the totting-up procedure unless you can make a case and persuade the Magistrate’s not to do so on the grounds of exceptional hardship. 

Exceptional hardship can be established when the circumstances mean that disqualification would have a disproportionately harsh impact on the driver or other people. 

Guidance issued by the Sentencing Council states: 

“Disqualification for a minimum of six months must be ordered if an offender incurs 12 penalty points or more within a three-year period (Road Traffic Offenders Act (“RTOA”) 988, s.35). The minimum period may be automatically increased if the offender has been disqualified within the preceding three years. Totting up disqualifications, unlike other disqualifications, erase all penalty points.

The period of a totting up disqualification may be reduced or avoided for exceptional hardship or other mitigating circumstances if the court thinks fit to do so. No account is to be taken of hardship that is not exceptional hardship or circumstances alleged to make the offence not serious. Any circumstances taken into account in the preceding three years to reduce or avoid a totting disqualification must be disregarded.”

To establish exceptional hardship it must be above and beyond the normal hardship and inconvenience of disqualification. It is for the defendant to establish that mitigating circumstances exist. Normally this will require you to give evidence on oath.

If exceptional hardship is established the court can disqualify for a shorter period of time or not disqualify at all.

So what might amount to exceptional hardship?

  • Loss of employment: This might be for example if you are a business owner whose business would fail and employees would lose their jobs if they were disqualified. 
  • Financial hardship: If driving is essential to hour job and your loss of income would for example mean that you could not afford the mortgage of the family home if disqualified. 
  • Carer responsibilities: do you have elderly relatives in poor health living in rural areas for examp;e? 
  • Impact on health and safety: you might be an ambulance driver or medical professional visiting sick pepper for example. 
  • If the disqualification has the effect of acting contrary to a rehabilitative purpose of sentencing. In the case of Preston [1986] RTR 136) the appeal court judge stated:  “As I have also indicated, the present and subsequent offences relating to motor cars were committed in part because of his lack of funds. We obviously shall provide an advantage to him and, perhaps more importantly, an advantage to the public if we increase his chances of employment or of retaining his employment by not disqualifying him. By doing so we think that we increase his chances of rehabilitation. If that is so, not only he, but the public will benefit. For these reasons we have come to the conclusion that whilst the order for endorsement must stand, we will quash the order disqualifying him for holding or obtaining a driving licence. To that extent this appeal is allowed.”

Thorough preparation is needed before the appearance at court to present your case. Engaging the services of an experienced motoring lawyer is advisable to increase your chances of success.

Rose & Dunn are specialist criminal defence and motoring law solicitors and higher courts advocates. We can be contacted at any time of day or night. If you need emergency police station assistance contact us using any of the methods below and we will get back to you as soon as possible.

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