Driving disqualifications guidance – exceptional hardship

The Sentencing Council is responsible for issuing guidelines on sentencing for the courts to follow. Guidelines must be followed unless it is in the interests of justice not to do so. New guidelines are now being proposed in respect of disqualifications from driving.

What is being proposed?

The guidance mainly relates to cases dealt with in the magistrates’ court. Minor changes are proposed to sentencing guidelines for driving while disqualified, and more significant changes are proposed in respect of the ‘totting up’ provisions.

What is totting up?

The ‘totting up’ provisions come into play when an offender incurs 12 or more points on their driving licence. Once 12 points are imposed, the offender must be disqualified for a minimum period of time. The length of that period depends upon whether the offender has been disqualified before. This disqualification can be avoided if the offender can successfully argue that not being able to drive would lead to ‘exceptional hardship’.

Exceptional hardship

The new guidance sets out the considerations for the court in deciding whether or not there are grounds to reduce or avoid a disqualification. The court will be told to have regard to the following:

the test is not inconvenience, or hardship, but exceptional hardship;
the court must have evidence of the exceptional hardship, which may come from the offender’s sworn evidence;
courts should be cautious before accepting claims of exceptional hardship without evidence that alternatives for avoiding exceptional hardship are not viable, this would include alternative means of transport;
loss of employment does not, on its own, necessarily amount to exceptional hardship. Whether it does or not depends on the circumstances of the offender and the consequences of the loss of employment on the offender and/or others;
the more severe the hardship, the more likely it is to be exceptional.

What else is proposed?

In the guideline for driving while disqualified, it is proposed to make it clear that an existing disqualification should be added to any new disqualification period.

At the moment if an offender receives a six-month disqualification and a week later gets another six-month disqualification, he would end up with a six-month one-week disqualification, as they run alongside one another. Under the new proposal, his total disqualification would be for 51 weeks.

What happens next?

The changes are subject to a consultation seeking comments on the proposals. The consultation closes on 15th April 2020, so the guidance will not be in force prior to that date.

It is clear however that a much more rigorous approach will be taken by the courts, sooner rather than later, and we can reasonably expect that courts will have in mind these proposals even though not yet in force.