Avoid a Driving Ban
- Can I avoid a driving ban?
- What do I need to show to prevent or escape a driving ban?
- What is Exceptional Hardship?
- I have successfully argued exceptional hardship in the past. Can I use the same arguments again?
- What if I can show I will lose my job as a result of a driving ban?
- What defences are available? How do I defend an allegation?
- What is a Plea in Mitigation? / What are Mitigating Circumstances?
- What are Special Reasons?
- How can I put a submission to the Court?
- How can I establish the prospects of success?
- Why do I need to instruct a lawyer/solicitor in order to retain my driving licence?
In some cases, such as drink driving or death by dangerous driving, a driving ban is obligatory. However, for other offences, disqualification is discretionary and it is therefore possible to avoid a driving ban if the correct mitigation is presented to the Court.
Although, under the totting up procedure a driving ban is mandatory, the Court does in fact have discretion and a totting up ban can be avoided if the Court accept a submission of exceptional hardship.
Before imposing any discretionary driving disqualification, the Court will allow the motorist the opportunity to plead for their driving licence. The Court will take into account the individual's circumstances to include the circumstances of the offence and the effect a driving disqualification would have. If the Defendant can show that having taken into account all of the information available, a driving ban would be an exceptionally harsh punishment, the Court can exercise discretion and allow the Defendant to keep their licence.
It is a common misconception that if a Defendant merely suggests that a driving ban would be a particularly harsh punishment, the Court will be lenient. In fact, the Defendant has to convince the Court that such a punishment would be exceptionally harsh, hence the term, exceptional hardship. The obligation is upon the Defendant to show why a driving disqualification should not be imposed. This is not a straight forward task and is one for which a motorist should seek legal guidance from a specialist motor lawyer.
There is no specific legal definition. Exceptional hardship will vary according to the circumstances of the Defendant. However, in order to prevent the loss of a driving licence, the Defendant must show the implications and effect of a disqualification would go far beyond that which would normally be anticipated. The Court will automatically assume that any suspension will result in hardship and will emphasise that that is the purpose of a disqualification. However, if it can be established that the implications would go far beyond that which would be reasonable, it is feasible that the Court would accept those circumstances as being "exceptional" and sufficient to justify a punishment other than a licence suspension.
You would only be able to use the arguments again, if more than 3 years has expired since the previous hearing. Otherwise, you would have to rely upon new reasons for your exceptional hardship case.
The Court will take this into account but loss of employment alone is not normally sufficient to justify the Court exercising discretion. The Defendant has to show more than the potential loss of job or employment and as most courts will point out, the Defendant would have undoubtedly been aware of the effect that a ban would have on employment before the offence was committed.
The way to defend an allegation will vary according to the nature of the offence. Any defence must be absolute, meaning that that the allegation is denied in its entirety and although the burden of proof would normally be on the prosecution to prove the case, the Defendant will have to ensure that his defence covers all aspects of the allegation in order to have any prospect of an acquittal or not guilty decision.
It needs to be understood that there is a distinct difference between defending an allegation, a plea of mitigation, special reasons and exceptional hardship.
If you have pleaded guilty or have been found guilty, before the Court imposes any punishment, you will be given the opportunity to put forward a plea of mitigation. The purpose of this is to convince the Court to impose the most lenient punishment possible. It can be dealt with by way of personal attendance or at the Court's discretion, in writing by way of a letter of mitigation.
In the normal course of events, when a Defendant is guilty of an offence their licence will be endorsed. Special reasons occur when the Court concludes that there are particular circumstances that relate to the offence (ie not the implications of a punishment) that are sufficient not to order an endorsement or disqualification. If the Court finds that there are Special Reasons, although the Defendant will be found guilty, no penalty points will be endorsed. Special Reasons cannot be used to reduce the number of points, if the Court finds Special Reasons, there must be no endorsement at all. Accordingly, a person could admit that an offence has been committed, but argue that there are special reasons as to why there should be no endorsement. Special Reasons do not amount to a "defence" as otherwise the Defendant could not admit or would be found not guilty of the offence.
The vast majority of cases are dealt with in the Magistrates' Court in England and Wales and the Sheriff's Court or Justice of the Peace Court in Scotland. You will need to attend in person and the Court will expect you to be fully prepared with a detailed submission as to the implications of any punishment. Remember, whilst the Court will consider your submission, the justices are not there to help you run your case. Consequently, if you are not fully prepared, your case could be dismissed quickly and a ban imposed.
If you wish to challenge any of the evidence, you need to warn witnesses to attend and you will be expected to question them. Likewise, you can be cross–examined by the prosecution. The Court would normally make a decision immediately and if you lose, a ban will be imposed there and then.
The Court process can be more detailed or complicated than most people realise. For further information please refer to the Attending Court Page.
Although many Defendants are happy to and are capable of representing themselves, it is not simply a case of pleading for mercy; there is specific legal criteria that has to be established before the Court can exercise discretion, regardless of any sympathy the Magistrates may have for the Defendant. If you do not know what the criteria is, then your plea for leniency will not have the desired effect.
By instructing or obtaining advice from a specialist motor lawyer, the technical issues can be dealt with thus ensuring that you do meet the criteria and that your plea can then be considered. Additionally, it goes without saying that a specialist lawyer is able to prepare the case to a higher standard and a specialist advocate will present it in a more compelling manner.