Category: Criminal Defence
Often, the prospect of losing a driving licence can be a greater concern for people than the fine that usually accompanies it. We rely on our vehicles for a multitude of reasons, from family to business, and that reliance is conditional on being in possession of a driving licence. Following a conviction for a road traffic offence, an accused person may be facing penalty points being endorsed on their licence or even disqualification.
However, our law does recognise that there may be situations where imposing penalty points or losing a licence is disproportionate to the offence that was committed or losing the licence may cause undue and exception hardship to others. Accordingly, there is a mechanism that allows for people to argue there are either special reasons for not endorsing their licence with points at all, or that the imposition of a 6-month disqualification under the totting-up provisions would cause exceptional hardship to someone other than themselves.
Section 34 of the Road Traffic Offenders Act 1988 allows the court to consider the particular circumstances of the offence to determine whether or not the court should refrain from disqualifying the accused, reduce the period of disqualification or, where disqualification is not an issue, refrain from endorsing the licence with penalty points. Successfully arguing there are special reasons present does not remove liability for the offence – a decision in respect of special reasons can only be made after a conviction, whether by way of a plea or following a guilty verdict after trial.
An example of a case where special reasons were successfully argued related to a speeding offence. Our client appeared in the Justice of the Peace Court in Glasgow on a complaint where he was charged with two speeding offences on two separate occasions. As speeding is a strict liability offence and he did not dispute the charge, he plead guilty. It was then argued at a special reasons proof that the circumstances leading to the offence related to a mechanical defect in the car. The client gave evidence and documents were produced from his car dealership showing that the vehicle was subject to a recall to fix the issue shortly after these offences were committed. The Justice found special reasons were established and his licence was not endorsed with any penalty points, but he did receive a fine.
Section 35 of the Road Traffic Offenders Act 1988 details what are commonly referred to as the “totting-up” provisions. Where an accused is to have points imposed on their licence and those points will lead to 12 or more live points in the licence, then that person will be subject to totting-up and will be disqualified for a period of at least 6 months (in certain circumstances, it can be 1 year). The court will disqualify for the minimum period unless there are “grounds for mitigating the normal consequences”. Section 35(4) states that no account is to be taken of hardship “other than exceptional hardship”. It is this exceptional hardship that can be relied upon to avoid the consequences of totting-up. It should be noted that the penalty points will still be applied to the licence, but the disqualification won’t be applied.
There are a wide range of circumstances that could be regarded as exceptional hardship and there is by no means an exhaustive list. Every case will require to be examined on its own merits. The court will be looking for evidence of hardship of a serious kind on the accused’s business, family or long terms prospects and the focus will be on external circumstances, not the accused or the offence itself.
An example of exceptional hardship can be found in the 2016 case of Waine v Harvie where the accused was convicted of using a mobile phone whilst driving. The 3 penalty points he received engaged the totting-up provisions so he argued there would be exceptional hardship to others were he to be disqualified for 6 months. The Justice disagreed and imposed the disqualification. This was then successfully appealed, and the Sheriff Appeal Court found there was evidence that his business would likely fail, his 10 employees would lose their jobs and there would be a knock-on effect on his family and the families of his employees, so the 6-month disqualification was quashed.
It should be remembered that when facing penalty points or disqualification, there may be options available to you to avoid these consequences. If you are looking for advice in relation to a road traffic offence, our Criminal, Litigation and Inquiries team are here to help.
  SAC (Crim) 19
Don’t gamble on your driving licence or your liberty. It’s essential that you get the right advice straight away. For more details, contact Paul Mullen or any of our solicitors on 0141 429 8166 or complete our online contact form.