Introduction

As most of the Top Gear fans amongst you will know if you accumulate 12 points or more on your driving licence you can be disqualified from driving. However, this is not by any means a foregone conclusion.

Statutory Basis

The relevant piece of legislation is Section 35 of the Road Traffic Offenders Act 1988 which provides that the court must order the driver 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 the driver to be disqualified for a shorter period or not to order the driver to be disqualified at all.

Minimum Period

The minimum period of disqualification is 6 months where no previous disqualification (lasting 56 days or more) has been imposed on the driver within 3 years immediately preceding the commission of the date of the offence (rather than the date of conviction by the court) which results in the totting-up procedure being applied. The minimum period rises to 1 year where there has been a single previous disqualification and 2 years if the driver has received 2 or more such previous disqualifications.

Exceptional Hardship Hearing

Section 35(4) represents a significant restriction on the circumstances that can be taken into account by the court when deciding whether or not to apply the totting-up procedure. This states that no account is to be taken of hardship, other than exceptional hardship.

Both the circumstances of the offence and of the offender can be taken into account. Each case is considered on its own merits. The court has taken into account the following circumstances in the past: the likelihood of the loss of employment to the driver as a result of the disqualification and the effect that this may have on their family (or employees and their families where the driver has their own business); having an ill child or other member of family who requires regular transport to and from hospital; and the lack of nearby available public transport as an alternative means of transport.

However, it must be emphasised that these factors are not be any means exhaustive or conclusive. If you find yourself subject to the totting-up procedure or are prosecuted for any road traffic matter or indeed any other criminal offence please do not hesitate to contact Duncan Love, Denis Daun or Steven Gauld.