Now that I am retired having been many years a magistrate with a long awareness of the declining freedoms enjoyed by the ordinary citizen and a corresponding fear of the big brother state`s ever increasing encroachment on civil liberties I hope that my personal observations within these general parameters will be of interest to those with an open mind. Having been blogging with this title for many years against the rules of the Ministry of Justice my new found freedom should allow me to be less inhibited in these observations.




Comments are usually moderated. However, I do not accept any legal responsibility for the content of any comment. If any comment seems submitted just to advertise a website it will not be published.

Friday, 31 January 2014

EXCEPTIONAL HARDSHIP SHOULD BE “EXCEPTIONAL”


Drivers who accumulate 12 or more penalty points within any three years are liable to a mandatory disqualification for a minimum of six months. This is a powerful deterrent to repeat offenders. Legislation regarding disqualification for totters allows magistrates not to disqualify or to reduce that period only if they are satisfied having regard to all the circumstances that there are grounds for mitigating the normal consequences of the conviction the most common of which put forward is the potential effect of the disqualification on the offender; namely that exceptional hardship would result.
 
Magistrates should know all about exceptional hardship as it applies to driving disqualification……….or at least their legal advisers ought to know. Practice suggests that the loss of employment by itself is unlikely to satisfy the “exceptional” test. Some judicial guidance can be found in the Scottish case of Brennan-v-McKay (1996) 1997 S.L.T. 603. A taxi driver reached 12 penalty points on being convicted of speeding. He claimed that he would be likely to lose his job and be unable to obtain other work and this would have a substantial effect on his family. The High Court of Judiciary held that the justices were entitled to conclude that exceptional hardship had not been demonstrated. Whilst it was not an invariable rule that exceptional hardship would only be established where persons other than the accused and his immediate family would suffer it was ruled that it was necessary to demonstrate that there were other circumstances associated with loss of employment which might involve reflected hardship of a serious kind on the accused`s business, his family or his long term prospects [per Lord Hope in Brennan-v-McKay].
 
It is important to note that offenders may not put forward the same circumstances which have been used either for not disqualifying or for reducing the length of the totting up disqualification within three years of conviction {sec. 35(4)(c) RTOA 1988} It follows that detailed court records must be made of the exact circumstances which justified any finding of exceptional hardship.

However the Sunday Times in an article on this subject a few years ago threw some doubt on those assumptions. As that newspaper is now behind a paywall no link can be given but amongst other things it quoted the following although there was subsequently some dispute as to the statistical analysis employed.:-

31,110 drivers disqualified for reaching 12 points in 2009
11,228 is the number of drivers reaching 12 points not disqualified in 2009


From the above figures more than 26% of drivers accumulating 12 points were allowed to continue driving under the exceptional hardship guidance. From my own experience I find that ratio astonishing. The conclusion on the surface appears to be that misplaced application of the guidance is possibly being applied. Perhaps more formal guidance is required from our lords and masters.
 
Wales-on-Line reported a recent case  where the exceptional hardship argument was successfully applied. The organisation Brake offered its own reflex - action comments as it usually does in controversial road safety matters excoriating the bench with its  vitriol of metaphoric tar and feathers. Spokespersons of HMCTS are well versed in the art of spinning comment often lacking accuracy or knowledge. In the report s/he demonstrated her/his ignorance being quoted as saying, “Magistrates can use their discretion to not enforce a driving ban if doing so would cause exceptional hardship, such as losing a job (my italics) or the ability to care for a dependant. A fine will still be enforced”. It is precisely this error which leads perhaps to misplaced decisions in the retiring room.
 
If possible unemployment alone succeeded as a reason of every exceptional hardship application the deterrent of disqualification from driving would disappear overnight. The motto is that those for whom a driving license is of utmost importance should ensure their driving  behaviour remains within the law.

4 comments:

  1. You can get twelve points in one go, if stopped for a missing a tail-light, and three tyres marginally below the tread limit are found. I don't know of anyone who would think a ban was appropriate in such a case, even in the absence of any hardship.

    Driving offences are not malum in se. The totting-up ban is supposed to be a punishment for a persistent pattern of driving offences over a period of time. If that's not how the offences occurred then it seems to me that the punishment may well not fit the crime.

    The first duty of the court is to do justice. I am glad that magistrates are considering the circumstances of the offences, and weighing the consequences of the punishment, not merely applying rules like robots. Inspector Javert was not a role model.

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  2. I'm not sure that Ben is correct. My practice and I think the norm, is to 'give points' for the most serious (eg no insurance) and fine for others. Several offences on a single occasion (eg 3 faulty tyres) does not, I think, result in 9 points.

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    1. This is correct. Where someone is convicted of 2 or more offences committed at the same time points are only given for 1 of them.

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    2. I agree very much with Ben. As a serving Magistrate we should be seeking to do justice and not applying rules in a tick box fashion. People get points on their licences for all sorts of different offences and for reasons that do not always put others at risk. Again there is a huge difference between someone losing their licence in a city environment where there is plenty of public transport and those who might be at risk of losing their licence in a rural community where there is little or, in some cases, no public transport whatsoever. A degree of proportionality should also be considered. Depending on the offences, is losing your licence and your job and also possibly your home proportional to the offences committed? Finally, might offenders behaviour be modified by the fact that those who are successful in pleading exceptional circumstances are then driving around with 12 or more points on their licence in the knowledge that they cannot use the same reasons again and that any offence of any kind will almost certainly result in the loss of their licence. Might this be a better contribution towards road safety than potentially ruining someone's life. The writer of this blog spends quite a bit of time railing against diktats handed down from above. We should maintain our independence as best we can in the interests of justice for all.

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