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.
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