Driving Offences, Discretionary Disqualification and Exceptional Hardship

Massimo Trebar headshot

Massimo Trebar


In Brief

It is commonly known that drivers who accumulate 12 or more penalty points, within any three-year period, stand to be disqualified for a minimum of 6 months under S35 of the Road Traffic Offenders Act of 1988.  This is known as a “totting disqualification”. It is not just speeding that will attract penalty points, but a whole range of driving offences, such as driving without insurance, driving whilst operating a mobile phone or careless driving. 

police car blue and red lights

What are the potential sentences for road traffic offences?

At a sentencing hearing for road traffic offences, the court will look three years before and, if appropriate, three years after the dates of offences being dealt with. The important dates are those when the offences were committed, not the date that sentence or punishment was imposed. It is entirely possible, therefore, that you could face a disqualification after that three-year period has finished, because of the amount of time cases sometimes take to get to court, and then to be dealt with at a sentencing hearing. 

What is ‘Exceptional Hardship’?

If you are facing the threat of this kind of disqualification because of having 12 points, you can make an application for the disqualification not to be imposed. The magistrates exercise their discretion not to disqualify if they can be persuaded that the effect of disqualification upon you or third parties connected to you would cause “Exceptional Hardship”.

Unhelpfully this legal term is not defined in the statute; but has a meaning derived from a number of cases and situations. There is a common misconception that the hardship is or must be purely financial, this is not the case. Equally, the fact that disqualification may lead to hardship is not enough. Another way of looking at the term “exceptional” would be to say that the hardship caused must be extreme.

How can ‘Exceptional Hardship’ be proved?

For instance, the mere loss of a job may not be enough in itself. Rather, a catastrophic change in fortunes placing a person in genuine difficulties needs to be demonstrated. What is often most persuasive is being able to establish what the impact of disqualification will be on third parties connected to the person who has committed the offence; family, employees, friends. The court will often be more readily sympathetic to their predicament because they did not commit the offences. 

With our private client team, we have been very successful in putting forward such applications. We are aware that success in such cases requires a large amount of preparation and supporting evidence. We have conducted a very large number of such applications over the years for all sorts of people in all sorts of different situations, from the self employed “one man band”, to professionals and company directors with the responsibility of multiple employees and dependants upon them.

Additionally we have represented medical professionals; trustees of charities, entrepreneurs, carers. We pride ourselves in understanding the particular circumstances which are unique to each client and building the best case that can be advanced to show to the court what would be exceptional about their hardship if disqualification were imposed. 

What happens if ‘Exceptional Hardship’ can be proved?

If the court is persuaded that exceptional hardship will occur as a result of any disqualification, the court has the power to reduce the disqualification to a period of time less than 6 months; or to not disqualify at all. If there is a disqualification; even a reduced one, this will have the effect of “wiping off” all of the existing penalty points so that the driver has a clean slate.

However, if there is no disqualification, the points will remain on the driver record, and any new driving offence committed within three years will trigger a new totting disqualification. You can only use an exceptional hardship application once in any three-year period. 

If you are in this situation it is vital that you receive expert advice as soon as possible at the beginning of proceedings, in order that any such application can be prepared as fully as possible giving you best the chance of being successful and avoiding the hardship that would otherwise occur. 

About the author

Massimo Trebar is a vastly experienced Criminal Solicitor having trained in Central London, with well-established Criminal Solicitors dealing with high-profile cases. He has developed a particular specialism in Road Traffic offences but is equally adept in all areas of Criminal Law. He has an empathic relationship with clients, but brings to that a meticulous attention to detail.

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