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Avoiding a Totting Up Penalty Point Ban


Totting up points Driving Licence banWhen a driver accumulates 12 or more penalty points in a 3 year period, he or she is usually subject to a ban lasting a minimum of 6 months under the "totting up" rules. However, in certain circumstances the court has discretion not to impose a ban or to reduce the length of ban imposed.
These rules apply to offences committed within a 3 year period. The dates when the points are awarded are not considered. So if points have expired since the offence, but before the court proceedings, then the disqualification is still applicable. However, this means that it is also necessary to look at the date of the first relevant offence, not when points were awarded, to check that the points do span over a period of less than 3 years. If not, then the totting up provisions do not apply.

A totting up disqualification is for a minimum of 6 months. If the accused has had another disqualification of over 56 days in the last 3 years, then a totting up disqualification is for a minimum of 12 months. If he or she has had two disqualifications in the last 3 years, then the minimum disqualification is for 2 years.

The concept of Exceptional Hardship
The court can take into account the hardship that imposing a ban will cause, but only if it can be classed as Exceptional Hardship.
If exceptional hardship is established on the balance of probabilities then the court can refrain from disqualifying or reduce the period of disqualification.
For an exceptional hardship argument to succeed a driver must, as the term implies, display that the hardship that they will suffer is more than that which anyone losing their license would have incurred.

Moreover, the court are more likely to be swayed if an accused person is able to show ‘reflected hardship’ to individuals other than themselves who would suffer as a consequence of them losing their license. Although there many reported decisions from the Appeal Court in Scotland on what constitutes exceptional hardship it is important to remember that each case will be judged on its own particular circumstances

Examples of what a court will consider to be exceptional hardship might include:
(1)A restriction on mobility for a driver with severe health problems.
(2)A threat to the job stability of employees if a manager, business owner or key employee is unable to fulfill their role.
(3)If the driver works in a career with a high level of importance to the health or safety of the public, or a specific group of people.
(4)Loss of a career, if this in turn leads to an inability to meet financial commitments such a mortgage payments and the consequential loss of a property in which a person other than the accused person resides.

So in one case an accused led evidence to the effect that he was a self-employed plumber whose license was essential to his ability to work. Evidence was led that if he lost that employment not only would he be unable to pay his own mortgage for the house in which he and his partner resided but moreover, he would be unable to pay a second mortgage on a house in which his elderly mother resided. His elderly mother was severely arthritic and relied upon her son to transport her to and from hospital appointments. The accused’s ability to exercise contact with his six year old daughter in another town would also have been severely frustrated if he was to lose his license. Exceptional hardship was ultimately deemed to exist by the court.
Our experience of exceptional hardship cases has shown that a key ingredient to success in exceptional hardship cases is not only thorough preparation but more importantly proper vouching through documentation such as:

(1) Written testimonials
(2) Financial statements
(3) Letters from employers confirming the outcome of disqualification.
(4) Mortgage details

Indeed the Appeal Court in Scotland has repeatedly observed that a court should examine very closely any suggestion of exceptional hardship and should only hold it established on the clearest possible evidence (Holden v Macphail 1986 Scottish Criminal Case Reports 486 ).
Reported cases where exceptional hardship was found to have been established include the following:

Robinson v Aitchison 1986 SCCR 511
Here the accused could not obtain, due to work hours, a hired driver. His business would collapse on the loss of his license, leading to six redundancies. Exceptional Hardship was established.

McFadyen v Tudhope 1986 SCCR 712
Here the accused employed three people, and was the only one to hold a license. Disqualification would end the business, cause three redundancies and lead to the loss of the accused’s family home. Exceptional hardship was established.

Gray v Jessop 1988 SCCR 71
Exceptional hardship was established where the accused would lose his job, his house where he stayed with his wife (through inability to pay his mortgage), become unable to repay a loan of £3000 from his employers, and whose marriage would probably break down, if he were disqualified.

McLaughlin v Docherty 1991 SCCR 227
Here the accused was a self employed consulting engineer with a cash flow problem and a large overdraft. He was responsible for three self-employed contractors who would lose employment if he was disqualified. It was held that six months disqualification would result in the contractors losing their jobs. There was exceptional hardship so the disqualification was reduced to three months.

Howdle v Davidson 1994 SCCR 751
Here the accused ran a business on behalf of his wife. If he was disqualified there was a strong possibility that he would lose his job and that the family would, as a consequence, lose their main source of income. This would in turn cause ‘reflected hardship’ to his wife and children who faced the risk of losing the roof over their head. The court decided there was exceptional hardship.

Colgan v McDonald 1999 SCCR 901
Here a single parent had two children with severe medical problems. One had cerebral palsy and another had mental health difficulties. She required her license to run her children to and from school and to hospital appointments. Loss of her license would make it practically impossible for her to do this. Exceptional hardship was found to exist.

Mugaraneza v Procurator Fiscal, Glasgow (unreported December 2008)
An example of the Court of Appeal taking into account the prevailing financial climate. In this case it was decided that exceptional hardship prevailed. Here the drivers business would cease to function and several employees would lose their livelihoods if he lost his license. The court had regard for the reflected hardship that would befall others of the driver lost his license and the fact that in the prevailing financial climate it would be very difficult for his employees to find new jobs.

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