Mitigating Circumstances To Avoid A Driving Ban: Tips From A Motoring Solicitor

Mitigating circumstances are factors that can influence the decision-making process in court, often reducing the severity of the punishment received. This could involve explaining that the offence was out of character, demonstrating remorse, or providing evidence of ‘exceptional hardship’, such as significant disruption to your work or personal life that a ban would cause.

If you are facing a disqualification from driving, which may happen if you have committed a speeding offence which is in the middle or top category and resulted in being classed as a serious offence or are facing a ‘totting up’ disqualification, then you may be wondering if there is any way to avoid a driving disqualification.

How Can Caddick Davies Help?

If you are facing a dangerous driving disqualification and are looking to plead guilty and present mitigating circumstances to the court as to why you should not be disqualified from driving, then the team at Caddick Davies Solicitors can help.

We are a motoring law specialist firm whose solicitors can give honest advice and guidance to help you to secure the most successful outcome possible when facing driving charges as well as identify and successfully present mitigating circumstances to the court. As we only deal with motoring law cases day in and day out, if you are looking to avoid a driving offence or disqualification then we can help.

Call our expert team today on 0151 944 4967

This article will provide you with a deep dive into these mitigating circumstances, how they can be effectively used in your defence, and how legal experts like Caddick Davies can guide you through the process.

Types Of Disqualification:

• Discretionary disqualification – Discretionary period of disqualification from driving for a motor offence which carries penalty points.
• ‘Totting up’ disqualification – A mandatory period of disqualification as a result of accumulating 12 penalty points or more.

I Have Been Charged With Speeding, When Does The Speed Itself Warrant A Discretionary Disqualification?

If you have been caught speeding and you have fallen into the middle or top category, then you will be faced with a potential disqualification from driving due to the speed limit or seriousness of the speed itself.

The Magistrates’ sentencing guidelines provides the following:

I Have Been Charged With Driving Without Due Care And Attention, When Does This Warrant A Discretionary Disqualification?

If you have been charged with an offence of driving without due care and attention, then you may be wondering when this warrants a discretionary disqualification. Where an offence of driving without due care and attention is deemed to indicate higher harm and higher culpability to other road users then this will warrant a discretionary disqualification.

The Magistrates’ sentencing guidelines provide the following endorsement/imposition:

The Magistrates’ sentencing guidelines provides that factors indicating greater harm include:

• Injury to others
• Damage to other vehicles or property
• High level of traffic or pedestrians in vicinity

The Magistrates’ sentencing guidelines provides that factors indicating higher culpability:

• Excessive speed or aggressive driving
• Carrying out other tasks while driving
• Vehicle used for the carriage of heavy goods or for the carriage of passengers for reward
• Tiredness or driving whilst unwell
• Driving contrary to medical advice (including written advice from the drug manufacturer not to drive when taking any medicine)

If you find that you have a factor present from both categories then this would indicate that your offence falls into category one and as a result you are facing a discretionary disqualification.

The court have discretionary powers to disqualify, the Magistrates will take into consideration mitigating and aggravating features when looking at the period of disqualification they intend to impose.

• Mitigating features include : No previous convictions or no relevant/recent convictions, good character and/or exemplary conduct, genuine emergency established.
• Aggravating features include: Offence committed on licence or post sentence supervision, poor road or weather conditions, driving LGV, HGV, PSV etc, towing caravan/trailer, carrying passengers or heavy load. driving for hire or reward, evidence of unacceptable standard of driving over and above speed, location e.g. near school, high level of traffic or pedestrians in the vicinity, Previous convictions, offence committed whilst on bail.

I Am Faced With A Discretionary Disqualification, Is There Anything That I Can Do To Avoid This?

Understandably if you are faced with a driving disqualification then you will be very concerned and wondering if there is any way to avoid a careless driving disqualification.

The Magistrates’ sentencing guidelines provide discretion within each category as to whether to provide penalty points or a disqualification.

When considering whether to endorse penalty points or a disqualification the Magistrates’ will consider the circumstances as to how the offence occurred as well as mitigating circumstances such as good character as well as the impact a disqualification would have upon those around you should you be disqualified from driving. This is owing to proportionality as it would be in proportionate to the offence to disqualify someone from driving which will indirectly lead to punishing those around them through no fault of their own.

How Do I Present Mitigating Circumstances To The Court To Avoid A Discretionary Disqualification?

Even though the court do not require supporting documentation to consider mitigation, to have the best chance of avoiding a disqualification from driving then obtaining supporting letters is crucial.

Examples of letters to obtain to present mitigation to the court:

1. Character references that detail previous good character is always advised to demonstrate how out of character this offence is.
2. Supporting letters from those who would be impacted by your inability to drive e.g. anyone who you help with your driving licence.
3. If a discretionary disqualification would impact your ability to work then a letter form your employer detailing the reasons why your driving licence is crucial and confirming the impact upon employment should you be disqualified from driving.

I Have Accumulated 12 Penalty Points On My Driving Licence, Is A Disqualification Inevitable?

Section 35 of the Road Traffic Act 1988 provides that when a person accumulates 12 penalty points or more than they are subject to a ‘totting up’ disqualification of a minimum period of 6 months disqualification.

Is There A Way That I Can Avoid This Disqualification?

If you are facing a 6-month disqualification and receive penalty points as a result of ‘totting up’ then you will no doubt, be very concerned about this prospect. You may be wondering if there is a way whereby you can be endorsed with the penalty points but not be imposed with a driving disqualification. The only way to do this is by presenting an application for exceptional hardship to the court.

What Is Exceptional Hardship?

Exceptional hardship is a discretionary application which can be made before the court where a person has 12 or more penalty points, and they ask the court to take into consideration the impact that a disqualification would have upon those around them. When exceptional hardship is found the Magistrates’ use their discretionary powers to not disqualify you.

You may be wondering what is the definition of exceptional hardship? How do the court determine what exceptional hardship is? What do I need to present exceptional hardship?

Further Reading: Exceptional hardship and totting up 

What Is The Definition Of Exceptional Hardship?

Exceptional hardship does not have a definitive definition as every individual is different and as a result every individual’s use of their licence will be different. Whilst this does not provide clarity, this ensures that the law takes into consideration an individual’s circumstances on a case-by-case basis.

The leading case of Cornwall v Coke [1976] Crim L.R. 519, makes it clear that the courts have a duty to assess the implications of a disqualification upon persons not only including the Defendant but also other people besides the Defendant, bearing in mind that such persons are effectively innocent and will be punished irrespective of this.

Examples where exceptional hardship has been found:

• Prospect of loss of employment resulting in likely loss of family home, resulting in hardship to immediate family amounted to exceptional hardship; Railton v Houston
• Loss of business owner’s licence would result in collapse of business and loss of employees jobs amounted to exceptional hardship; Robinson v Aichison
• Risk to family home and inability to meet debts amounted to exceptional hardship; Allan v Barclay
• Business relied upon the owner’s ability to drive, and it was not possible for him to employ a driver so this amounted to exceptional hardship; McFadyen v Tudhope
• The effect of a business owner’s disqualification upon independent contractors should be taken into account when considering exceptional hardship; McLaughlin v Doherty
• The Defendant had to take her child to hospital on a regular basis and as a result exceptional hardship was granted; Edmonds v Buchanan
• Loss of licence would endanger the family home. Taken together with risk to job losses to employees amounted to exceptional hardship; Howdle v Davidson
• The fact that the loss of licence of a skilled employee would cause serious hardship to the employer amounted to exceptional hardship; Findlay v Walkingshaw
• A single mother needed to drive to take care of her two disabled children which depended upon her licence and as a result exceptional hardship as found; Colgan v McDonald
• A father had to drive to his son for kidney dialysis so exceptional hardship was found; Kirk v PF
• The Defendant would be unable to continue charity work without their licence so exceptional hardship was found; Gardiner v PF
• Where loss of licence and employment meant child could not continue in further education, exceptional hardship was established; Bruce v PF
• It was held that a potential loss of employment for the appellant’s 10 employees amounted to exceptional hardship; Waine v PF

How Do The Court Determine What Exceptional Hardship Is?

When the Magistrates are considering an application for exceptional hardship, they consider the following guidelines which are provided to them by the legal advisor:

• It is for the Defendant to prove to the civil standard of proof that of exceptional hardship exist. Other than very exceptionally, this will require evidence from the offender, and where such evidence is given, it must be sworn.
• The court must have evidence that a driving disqualification will cause exceptional hardship and not just be a mere inconvenience.
• Almost every disqualification entails hardship for the person disqualified and their immediate family. This is part of the deterrent objective of the provisions combined with the preventative effect of the order not to drive.
• The court can take into consideration the fact that you are aware that you have a number of penalty points on your licence and that you have continued to re – offend.
• Before the court can accept exceptional hardship, they need to look at alternative means of transport and whether this would be viable.
• Loss of employment on its own will not equate to exceptional hardship. The court needs to be satisfied that this will have an impact on those around you.

What Do I Need To Present An Exceptional Hardship Argument?

You may wonder how you can prove that a driving disqualification will cause severe hardship to yourself and those around you. The court requires evidence, what form does this need to be in? How high is the bar for exceptional hardship?

The bar for exceptional hardship is high as you will need to establish that special reasons for disqualification would be exceptional and not an inconvenience.

Top tips for presenting an exceptional hardship argument:

1. To present a strong application for exceptional hardship then this requires letters addressed to the court from those that will be impacted by your driving disqualification explaining how this will impact them e.g. employees, partner, contracts,
2. If you take someone to medical appointments as a result of consistent medical issues, then providing medical documentation to support this is advisable.
3. If you would lose your employment as a result of a driving disqualification, then obtaining a letter from your employer confirming the reasons why you need your driving licence demonstrates that loss of employment is a genuine prospect.
4. If there would be a financial impact, should you lose your licence then supporting documentation should be provided to the court e.g. letter from an accountant, or loan confirmation.

Contact our legal experts today

How Will I Know What The Prospects Of Success Are For An Exceptional Hardship Argument?

As there is no definitive definition as to what exceptional hardship is and as a result this is considered on a case-by-case basis, if you would like honest advice as to the prospects of your application as well as the best approach then please contact us for free advice.

Owing to the discretionary nature of exceptional hardship there can never be a guarantee as to success in presenting these applications. To do so would be dishonest as the decision is ultimately down to the Court on the day as to whether they believe that a disqualification from driving would cause exceptional hardship to yourself and those around you and as a result they would like to exercise their discretion.

Can The Disqualification Be Longer Than 6 Months?

Usually where a person accumulates 12 or more penalty points the courts will impose a 6-month disqualification, however, this is a minimum and they can impose a higher disqualification. This occurs where the court concludes a person has numerous offences, or they have had a previous disqualification of over 56 days, which has been imposed within the three years prior to the date of which the current offence or most recent of the current offences was committed.

Can I Appeal A ‘Totting Up’ Disqualification?

If you have been disqualified in the Magistrates’ Court as a result of ‘totting up’ then you have 21 days to appeal this decision to the Crown Court.

This is a complete re – hearing and enables you to present your application for exceptional hardship again. You may have been unsuccessful previously for a number of reasons e.g. insufficient evidence and so this enables you time and the ability to obtain help to ensure that this is as strong as possible.

Conclusion

In conclusion, when faced with a potential driving ban, understanding and applying mitigating circumstances can significantly impact the final decision. It’s crucial to consider factors like the nature of the offence, any remorse shown, your previous record, and potential exceptional hardship. Engaging a motoring solicitor, like our team of experts at Caddick Davies, can help to guide you effectively through this legal landscape.

At Caddick Davies Solicitors, we have a team of specialist motor defence lawyers that specialise in representing motorists at risk of a disqualification or a large number of penalty points. From the simplest to the most complex of cases, we are here to help. We start every enquiry with an informal discussion to get a clear understanding of your circumstances and are here to answer any questions that you may have in confidence.

For efficient and effective legal advice for motoring offences, please get in touch to discuss your case with our friendly team today. 

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Neil Davies

Motoring Lawyer at Caddick Davies Solicitors

Caddick Davies is recognised as one of England and Wales’ leading motoring law firms, offering specialist Speeding Solicitors, Drink Driving Solicitors & Dangerous Driving Solicitors.We provide advice and representation on all motoring offences including speeding, the avoidance of disqualification on penalty points or “totting up” (exceptional hardship), driving without due care and attention (careless driving), dangerous driving, drink driving, as well as a range of services related to medical revocation of a driving licence.

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