EXCEPTIONAL HARDSHIP REQUIRES REVISION

Last week I posted on the possible connection between those who evade a driving disqualification by successfully pleading special reasons or exceptional hardship and who later are convicted of serious driving offences punishable by a custodial sentence.  The law in such matters is not fit for purpose when a man said to be worth £100 million and a duke of the realm attempted to use the latter get out of jail free card.  He was unsuccessful thanks to the lay bench at Lavender Hill Magistrates Court in London.  This area of law urgently requires revision.

There is no specific legal definition of what might amount to exceptional hardship. Each case will turn on its own particular facts and the personal circumstances of the individual driver. For example loss of employment will undoubtedly cause some hardship for anyone but whether that amounts to ‘exceptional hardship’ will depend on a number of factors including financial circumstances and family support to name a few.   

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. 

Nevertheless those facing a totting ban with some cash at their disposal for legal representation are likely to tell extraordinary stories to escape their just rewards; the aforesaid Duke of Norfolk being a prime example.  I would suggest that all those whose cases rest on a financial argument of being unable to afford alternative forms of transport eg taxis should be made to provide proof of their earnings eg tax return or similar irrefutable documentation to the court.  I would further suggest that those whose income is in excess eg of £100K /per annum be refused to employ a financial argument.  When the argument is based upon the proposed disqualification`s effect on third parties these individuals should be required to attend court and be cross examined and provide relevant evidence failing to do so being an immediate dismissal of the application. 

I would hope but have my doubts that this high profile case might stimulate some thinking by the new occupants at Petty France that all is not well with so many errant drivers evading a banning order.  The fact that MOJ refuses a Freedom of Information request to provide facts which are recorded on their data bases that might prevent innocent people being injured or worse by drivers who have little care for other road users is, unfortunately, a signal to the rest of us that they are all fur coat and no knickers when it comes to providing the public with real effective benefits from knowledge sitting there but ignored.   

A MINORITY REPORT APPROACH TO AVOIDING LENIENCY ON DRIVING BANS

In order for a democratic society to function as such the law must reflect the attitudes of that society to particular actions which might be detrimental to members of that society individually or as a group.  There are as so often is the case exceptions to the rule.  Hanging was suspended  (pardon the pun)  in 1965 when arguably there was no public mandate so to do but the government at the time led rather than followed public sentiment. It was abolished four years later. Offences for errant motoring activities have been around since the first cars appeared on the streets around 120 years ago when a driver was fined for refusing to identify himself to a constable. 

Since then the numbers of such offences have reached the hundreds.  Events and improved data collections have refined both the definition of offences and their sentencing.  Generally it should be assumed that the purpose is to deter, punish and rehabilitate offenders just as with much other legislation.  To do that a firm statistical basis on which to formulate such legislation is required.  Cost benefit analyses and other parameters are weighed, studied, and predicted to ensure maximum efficiency in the practice of new regulations.  The prevention of harm to individuals one would assume is a guiding light to those who are involved in this task. One such volume of information to that end  is already within the millions of data points collected by the MOJ: Special Reasons and Exceptional Hardship statistics. The latter topic has been discussed here at length and might be accessed by those two words being inserted in the search box. 

Between 7,000 and 8,000 motorists in England per year who have totted-up more than 12 points on their driving licence avoid disqualification by using that loophole in the legal system. A total of 142,275 people between 2017 and 2021 were banned from driving after accruing a licence-losing volume of points.However, a further 35,569 were allowed to remain on the road having told magistrates they will face 'exceptional hardship' if they were unable to continue driving. 

Driving offences where special reasons are applicable can be argued for any Motoring Offence. However these reasons are commonly used for: 

Drink Driving 

Failing to Provide a Specimen 

Speeding 

Driving without Insurance

Failing to Provide Driver Details. 

For special reasons in a specialist hearing to be accepted by the court the circumstances relied upon need to satisfy the criteria below;
 

Must be a mitigating or extenuating circumstance
Must not amount in law to a defence to the allegation Must be directly connected with the commission of the offence
Must be something which the Court ought to properly take into consideration when imposing sentence.

Whilst the statistics of exceptional hardship are widely available those for special reasons are locked somewhere in the bowels of the computers at Petty France where perhaps an expert researcher which excludes me might find them. However this post is not primarily concerned with numbers.  It is that knowing the numbers and circumstances of both get outs who go on to commit much more serious motoring offences would be an enabler in predicting those of them who would indeed be a future danger to life and limb both to themselves and innocent others. To that end a third party has recently made such a Freedom of Information request.   The MOJ has admitted it knows the numbers of those who have saved themselves from a driving disqualification by the successful employment of the above two arguments and have later convicted of having committed further serious imprisonable motoring offences  at the crown court especially causing death or serious injury by careless or dangerous driving but that the cost of relating them to their  driving records of previously escaping a ban is beyond the statutory allowance of £600. 

This appears to be a deliberate avoidance of a statistical analysis which just might offer clues to those who subsequent to avoiding a totting disqualification nevertheless show indications of being possible future offenders in more serious matters of breaking motoring laws. It might also give reasons to legislate so that the two arguments are placed under a more stringent basis so that fewer totters are excused their just deserts and that that dangerous minority is less likely to drive in a manner dangerous to others. For movie aficionados my proposal might be termed the Minority Report approach.  Now that would mean an incoming Secretary of State for Justice actually doing something tangible to improve the well being of the public instead of the seemingly unending press releases his department is expert in providing. 

DEATH OF A QUEEN AND S.5 PUBLIC ORDER ACT

There can be few of us who have not wondered whether or not our nation has been gripped by some form of national hysteria.  I write as somebody who leans towards republicanism but who was honoured to swear allegiance to Her Majesty Queen Elizabeth II and her heirs and successors  as a Justice of the Peace. She was head of state and I felt no hypocrisy on my part by so doing.  I am old enough to have been a primary school boy when told of the death of George VI.  Thus to some degree I stand apart from those of later generations who, in dozens of media conversations, have said that they felt some sort of personal affinity to our late monarch.  I did not.  The most startling impression I have had in the last few days is that so many people in this country are repeating scenes we last saw in 1997 on the death of Princess Diana.  I am no psychologist but my abiding impression of the TV coverage at that time was a nation in the grip of the aforesaid condition of national hysteria. It has long been recognised that groups of people can be enveloped in an overpowering common feeling whether benign or bewitched.  The Salem witch trials of 1692-3 have been considered lately by  psychologists as perhaps being of such a nature.  But what caused the mass hysteria, false accusations, and lapses in due process which resulted in the "execution" of 14 women? Scholars have attempted to answer these questions with a variety of economic and physiological theories. Thankfully the results so far of public grief expressed on the streets of Britain are not threatening to anyone except perhaps to that handful of individuals who have dared to express by means of posters carried that they would prefer to live in a republic or to one or two individuals who have voiced diverse opinions of the Duke of York.  According to social media and scant reports in mainline TV the police have merely arrested them in order to prevent a public affray or breach of the peace.  It is likely that S.5 of the Public Order Act was employed. 

Harassment, alarm or distress.

A section 5 offence comprises two elements:
 A person must (a) use threatening, abusive or insulting words or behaviour, or disorderly behaviour, or (b) display any writing, sign or other visible representation which is threatening, abusive or insulting; and

The words or behaviour, or writing, sign of other visible representation must be within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

Unique amongst the public order offences in the Act, section 5 requires no proof of any intention, nor that any person actually be caused harassment, alarm or distress, only that the act took place within the hearing or sight of a person “likely” to be caused harassment, alarm or distress.

It doesn`t take a lawyer to realise that this offence is based on subjectivity and not objectivity.  Thus it gives the police widespread power to impose their will at any scene which appears to them to be encompassed by the legislation.  The maximum penalty is a fine. For someone of the criminal classes a conviction for a S.5 offence is but a tap on the wrist but for a professional person of good standing it could be a hammer blow. Intending protesters should consider carefully the possible consequences of their actions. 

A SORRY HISTORY OF LORD CHANCELLORS//A LITANY OF FAILURE

Cameron, May, Johnson and now Truss; the fine figures that have led this country since 2010.  Such an accumulation of prime ministers in a dozen years makes us more Italian than Italy when it comes to political upheavals.  When it comes to Secretaries of State for Justice/Lord Chancellor the occupants of said post over the same period were as frequently deployed as the substitutes in international Rugby Union.  When one considers the disarray and lack of cohesive thought within that ministry it is no surprise that it is currently appearing to self destruct in front of us.  Barristers have finally had enough of being paid a pittance for their services within the criminal courts system but expected to provide a first class service for which they have taken an oath so to do.  Judges by their own volition ration their sitting days owing to impossible rules on the taxation of pensions in addition to government deliberately limiting courts` functioning timetables to reduce spending. Magistrates courts` staff have planned strike action later this month.  Magistrates` local independence has been absorbed into direct control by Her Majesty`s Courts and Tribunals Service their representative court committees and national bodies eliminated yet the farce of a pursuit of "local diversity" is pursued nevertheless.  Two year delays in crown court trials are now commonplace with corresponding delays at the lower court and Covid being the parroted reply to criticism such response being used as an alibi for deliberate under funding of the  whole system from police via probation to prison. 

This debacle started in 2010 when Kenneth Clarke proudly declared that he was the first cabinet minister to fulfil his part of the austerity programme by slashing the Justice Department budget by 23%. Thus began the closing of half the country`s courts. And so the decline to the sorry situation today when a former occupant of Clarke`s office somehow being promoted above her competence ( contrary to Peter`s Principle) enters number 10. The history of how she and the other holders of the office have  ruined a system a millennium in the making does not make for happy reading.

After Clarke`s time in office came Chris (failing) Grayling to Petty France: perhaps the worst Lord Chancellor of modern times. Earlier in 2010 it was reported by the Daily Telegraph that an IP address associated with the Parliamentary estate had been discovered attempting to remove references to his role in the expenses scandal from his Wikipedia page. They attempted the edit to remove the information five times and later received a warning from a Wikipedia administrator. It was Grayling who proposed cuts to legal aid which were widely criticised by the legal profession. In May 2013, 90 Queen's Counsels signed a letter sent to The Daily Telegraph that branded the cuts "unjust", as they would seriously undermine the rule of law. 6 January 2014 saw the first strike in British history by barristers and solicitors in protest at the cuts.In February 2014, he introduced the Criminal Justice and Courts Act 2015 to the House of Commons.  In October 2014, Grayling unveiled the Conservative Party's proposals for reforms to human rights in order to curb the European Court of Human Rights' influence over British court rulings, whilst honouring the text of the original Convention on Human Rights in a British Bill of Rights and Responsibilities.In January 2015 data relating to three fatal police shootings including details of marksmen and the deceased's family were lost in the post by the Justice Department. According to The Guardian it was particularly embarrassing for Grayling as the Government was claiming it needed to access personal data to deal with terrorism and could keep it securely. The data included details of the Mark Duggan shooting incident which had triggered the 2011 England riots.

After the 2015 general election Cameron promoted Michael Gove as Secretary of State for Justice and Lord Chancellor in his newly formed cabinet. He was praised in December 2015 for scrapping the courts fee introduced by his predecessor Grayling whose departure from office was greeted with unashamed relief by all in the legal world including magistrates who had had to  pronounce to offenders his ridiculous newly imposed court charges. The fees had been heavily criticised for, among other things, causing innocent people to plead guilty out of financial concerns. Gove removed the 12-book limit on prison books introduced by Grayling arguing that books increased literacy and numeracy, skills needed for making prisoners a "potential asset to society". The move, effective from September 2015, was welcomed by all including  the Howard League for Penal Reform and the literary establishment.  

And then followed Liz Truss. She was widely castigated for failing to support more robustly the judiciary and the principle of judicial independence, after three judges of the Divisional Court came under attack from politicians and from the Daily Mail for ruling against the government in R (Miller) v Secretary of State for Exiting the European Union. Lord Falconer, the former Lord Chancellor, who had previously suggested that, like her immediate predecessors Chris Grayling and Michael Gove, Truss lacked the essential legal expertise that the constitution requires, called for her to be sacked as Justice Secretary as her perceived inadequate response "signals to the judges that they have lost their constitutional protector". She didn`t last long and nobody lamented her leaving office.

She was followed by David Liddington who lasted six months in office and was a total waste of space.

And along came David Gauke who achieved nothing in his short tenure.

 A week after being sworn Rober Buckland in July 2019 in an interview for The Times newspaper expressed the opinion that suspects accused of serious crimes should be granted anonymity if the accusations threatened their reputation stating "let's say you are a reputable local business person who is accused of fraud. Your good name is going to be really undermined by this mere accusation. That might be a meritorious case for anonymity." In response to the interview Ian Murray, director of the Society of Editors stated said it was "absurd to suggest that in a liberal democracy we are going to create a system of justice that enables the rich, the powerful and celebrities to be protected when they are under investigation for serious crimes but the ordinary man or woman would be offered no such protections." Buckland's opinion was rejected by a Government spokesman who confirmed "this is not government policy", and the Ministry of Justice which confirmed "this isn't departmental policy" and stated that Buckland would not be giving further interviews on the subject which would now be handled by Downing Street.  In September 2020 Buckland stated on The Andrew Marr Show that he would resign only if the UK Internal Market Bill broke the law "in a way I find unacceptable".  An example of double speak from one of the experts.  Indeed he might have been following Humpty Dumpty with the latter`s assertion that words mean what I want them to mean. 

Finally until today we have Dominic Raab who in my humble opinion was all mouth and no trousers.  It has been obvious to all that he has been more concerned with his previous position as deputy prime minister following his failure as foreign secretary than accomplishing anything worthwhile other than unnecessary press releases in his time at Petty France.  

And so the story ends to begin again with more aspirants to an office which has been devalued by virtually all who have held sway since 2010 over a pillar of our democracy.