Avoiding Driving Bans & Penalty Points
Most people know that if you successfully defend a motoring offence, you will avoid a penalty. This means that you will not receive penalty points or a disqualifcation and will also avoid a financial penalty. You can often apply for reimbursement of some of your legal fees.
However, fewer people are aware of the other ways which can be legitimately used to avoid endorsement.
Many motoring offences carry mandatory driving bans or penalty points upon conviction. This means that if you keep guilty or are found guilty the court must impose penalty points for a period of disqualification, even if they are sympathetic with your position.
There are however arguments that can be put forward to avoid a ban or penalty points, even if you have no defence. The argument that are available depend on the offence that you are facing, and your particular circumstances.
The most commonly used arguments to avoid a ban or penalty points
Exceptional Hardship - used by those accumulating 12 or more points on their licence within three years to avoid the usual mandatory disqualification.
Special Reasons - can be used in relation to most motoring offences to avoid penalty points or a ban.
Discretionary Ban - often used by new drivers facing the revocation of their licence as a result of reaching six or more points within the first two years of passing their test. Can sometimes be used by those wishing to avoid totting up ban.
Section 34 of the Road Traffic Offenders Act 1988 provides that where a person is convicted of an offence involving discretionary disqualification, and either—
the court may order him to be disqualified for such period as the court thinks fit.
This effectively means that all offences which usually carry penalty points can theoretically carry a discretionary driving ban. If the court thinks it is so serious that the usual penalty points would not be appropriate, it can exercise its discretion and impose a disqualification. There is no maximum period of disqualification. Theoretically, the minimum period is one day, but it would be unusual for a court to impose a period shorter than 7 days.
There a large number of offences which, upon conviction carry obligatory disqualification. These include:
- Drink driving
- Drug driving
- Failing to provide a specimen for analysis when driving or attempting to drive
- Dangerous driving
- Causing death by driving (this includes various offences)
- Motor racing or speed trials
- Using a vehicle in a dangerous condition (if a similar offence has been committed within the previous 3 years)
The minimum period of disqualification for some offences is 12 months. However, for certain offences such as causing death or serious injury by dangerous driving, the minimum period is 2 years. Certain offences require the driver to pass an extended driving re-test before they can be granted a full driving licence.
We can advise you upon the particular allegation you are facing. We will ask you about the circumstances of your offence and/or situation and will make you aware if we think that any arguments are available to you. You will be informed about the strength of your argument, so that you can make an informed decision about whether or not to proceed with it.
It is important that you are fully aware of what factors can and cannot be taken into account by the court depending on the argument you are putting forward. For example, you cannot put forward exceptional hardship to avoid a drink-driving ban. You can however put forward a special reason, for example if you drove a very short distance, or your drink was spiked. Similarly, the fact that you were just over the speed limit, is not strictly relevant to an exceptional hardship argument. Although it is mitigation, the court would have no discretion but to disqualify you if you were to reach 12 points in this were your only argument.
A driving ban as a result of reaching twelve or more points is supposed to cost a driver money, and cause inconvenience. After all it is meant to be a punishment. Therefore the court will only find exceptional hardship when the consequences are something 'out of the ordinary'. Loss of a job is not usually enough in itself, but the consequences of losing your livelihood and the roof over your head is a different matter.
Exceptional hardship does not need to be financial. It can exist if there will be a substantial impact on mental health or if it impacts in other ways. Courts are obliged to take into account the impact on others and should have more sympathy when there is to be an impact on innocent third parties.
Courts need a certain level of detail if they are to make a favourable decision. It is not advisable to attend court without documentary evidence of some sort. Courts are aware that no-one wants to lose their licence and can be sceptical if claims are not backed up somehow. We can advise you of the evidence that you need to take with you to satisfy the court of your argument.
For more information see our page on exceptional hardship
A special reason Is not a defence. To put it simply, it is similar to saying "I am guilty, but there is such a good reason for me committing this offence, that the court ought to take account of it when sentencing." It is a high threshold to meet, and it is rarely enough just to say that you did not know you were committing an offence. Whether circumstances will amount to special reasond will depend partially on what is alleged. The more serious the allegation, the more persuasive the special reason must be in order to succeed.
If the court does find special reasons, it then has discretion to move away from the usual mandatory penalty. The penalties available to the court will depend upon the offence.
Most frequently, special reasons are used in cases involving driving without insurance, drink-driving and speeding, but they can be used in relation to many driving offences.
The leading case of R V Wickens 1958 lists criteria for circumstances to amount to a special reason:
to amount to a special reason, a matter must:
- be a mitigating or extenuating circumstance;
- not amount to a defence to the charge;
- be directly connected with the commission of the offence; and
- be one which the Court ought properly to take into consideration when imposing sentence.
For more information, please see our page about special reasons
Most low level motoring offences carry penalty points. However the court also has a discretion to impose a period of disqualification if it sees fit. This disqualification is an alternative to penalty points, rather than in addition to it.
Ordinarily, a disqualification is seen a more severe punishment than penalty points. However there are occasions when a short period of disqualification is preferable to points. For example, if you are a new driver who is facing 6 points for driving without insurance, you may prefer a ban to avoid your licence being revoked by DVLA. The decision to impose a ban rather than points is entirely at the court's discretion; it is not your choice. You must put forward an argument to convince the court that it should exercise its discretion. You are effectively asking the court to go against the new driver legislation, so it is important that you prepare your argument carefully.
The other time a discretionary disqualification may be used is to avoid a 'totting up' ban. The courts are generally even more reluctant to impose a discretionary ban in these circumstances, but we have been able to persuade them on multiple occasions.
If your are presenting an exceptional hardship argument or special reasons argument, you will almost certainly need to give evidence. You may also face questions or 'cross-examination' from the prosecutor and the Magistrates or Judge. We will prepare you for what to expect so that you feel as comfortable as possible.
If you are asking for a discretionary ban, you are unlikely to need to give evidence if you are represented by a solicitor.
If you want to appeal a decision of the Magistrates' Court, this will be to the Crown Court which is a higher court. The notice of appeal must be lodged with the Magistrates' Court that made the decision you are appealing. Although essentially you effectively get a new hearing of your case, the Crown Court is slow to interfere with Magistrates' decisions unless they are clearly wrong. If you are unsuccessful, the court can order you to pay costs. For this reason it is extremely important that you seek advice well before the appeal hearing. You can choose to abandon your appeal if the advice is not favourable. Provided you do this in plenty of time before the hearing date, it is unlikely the court will order costs.
If you have been banned from driving, the disqualification will not be lifted automatically when you lodge your appeal. You will usually need to make a separate application to the Magistrates' Court. It is best to submit your appeal notice at court immediately after the court has made its decision. As soon as you have done this, you can ask the court to lift the ban pending your appeal. If you do not do this immediately, it can take weeks or even longer before the court will hear your application. It is therefore strongly advisable to do this on the same day as the original decision.
Please be aware that there is a 21 day deadline for appealing to the Crown Court from the Magistrates' Court, so you need to take advice as soon as possible.
See more about appeals here.