Drivers who accumulate 12 or more penalty points on their driving licence are known colloquially by lawyers and the Courts as “totters”. This is because they become at risk of being disqualified from driving under the “totting provisions”. 

The Law

Section 35(1) of the Road Traffic Offenders Act 1988 provides that:

“where

(a)a person is convicted of an offence, and

(b)the penalty points to be taken into account on that occasion number twelve or more, the court must order him to be disqualified for not less than the minimum period unless the court is satisfied, 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 not to order him to be disqualified.”

This means if a driver accumulates 12 penalty points on their licence, they fall to be disqualified for a period of six months (or longer if there have been previous periods of relevant disqualification).

Can I avoid being banned for six months?

Depending on the personal circumstances of the driver, it is sometimes possible to persuade a Court not to ban them for 6 months:

• To persuade the Court that “exceptional hardship” would be caused; or
• To persuade the Court to consider imposing a “discretionary disqualification” in place of penalty points.

Exceptional Hardship

The meaning of “exceptional hardship” rather peculiarly comes from the Matrimonial Causes Act 1973 and case law arising from a family law case. In the case of Fay v Fay [1982] 2 All ER 922, it was held that exceptional hardship is something “out of the ordinary”. 

Cornwall v Coke [1976] Crim LR 519 which provides that the Court will only be concerned with hardship caused to the public, the offender’s employer, employees or family. The rationale for this is that the Court is concerned for parties who are wholly innocent but will suffer because of the offender’s inability to drive.

It should be drawn from the caselaw that a driver who wishes to raise an exceptional hardship argument with the Court will need to demonstrate that hardship will be caused to other people around him, not simply to himself.

Examples of potential exceptional hardship arguments are as follows:-

• Allan v Barclay 1986 S.C.C.R. 111 is authority for exceptional hardship being found in the case of a driver who is the main breadwinner for his family. By being banned, it would cause him to lose his livelihood and in turn his ability to keep up with mortgage payments and provide for his dependents.
• In Waine v PF [2016] SAC (Crim), the defendant ran a business employing 10 members of staff. His driving licence was central to the profitable running of the business and so a number of employees would lose their job if he was banned for six months. It was on this basis that the Court found exceptional hardship.

The driver raising the exceptional hardship argument must prove his circumstance on the balance of probabilities. This means that evidence will often need to be presented to the Court, in the form of documentary evidence or witness statements.  

Discretionary disqualification

Section 34(2) of the Road Traffic Offenders Act 1988 provides that:

Where a person is convicted of an offence involving discretionary disqualification, and either—

(a)the penalty points to be taken into account on that occasion number fewer than twelve, or

(b)the offence is not one involving obligatory endorsement, the court may order him to be disqualified for such period as the court thinks fit.

Drivers become “totters” through accumulating penalty points on their licence. In some cases, it is possible to persuade a Court to impose a discretionary disqualification as punishment instead of penalty points. The benefit of this is it avoids the driver amassing 12 penalty points on their licence and becoming subject to the totting provisions, when they would be disqualified for 6 months. 

A discretionary disqualification is likely to be between seven and 56 days. Therefore, a driver will be banned from driving, but for a shorter period of time than if they had been banned under the totting provisions. 

It is not always an easy task persuading a Court to impose a discretionary disqualification in place of penalty points, as it sometimes seems like the soft option for an offender. However, guidance is provided in Jones v DPP [2001] RTR 8. In this case, it is suggested that a Court, when faced with deciding between a totting disqualification and a  discretionary disqualification, should first consider exercising its power to impose a discretionary disqualification in light of the driver’s whole record. When dealing with more serious motoring offences, the Court may opt to disqualify the driver for six months under the totting provisions.

Click HERE to speak to a specialist motoring lawyer.