How do I avoid a driving ban?
Can I avoid a ban in my case?Court sentencing guidelines and the options available to the Court
MitigationPersuade the Court to impose a lenient penalty
Exceptional HardshipAvoid a totting up disqualification for reaching 12+ penalty points
Not Guilty PleaDefending an allegation
Preparing for CourtHow to prepare your case for the best prospects of success
Can I avoid a driving ban?
Court sentencing guidelines and the options available to the Court
Instant Discretionary Driving Ban
Most offences carry the potential of a discretionary disqualification instead of penalty points. An instant ban would typically range from 7 to 56 days, depending on the severity of the incident, circumstances etc., but the Magistrates have complete discretion and in extreme cases, a ban can be significantly increased. Likewise, a ban can be avoided completely, subject to mitigation presented.Mitigation
Reaching 12+ Penalty Points
If the Court imposes penalty points for an offence, which then means you have accumulated 12 or more points for offences committed within 3 years, you then face a 6 month totting up disqualification. A totting up ban can be avoided completely if an exceptional hardship submission is accepted by the Court.Exceptional Hardship
Special reasons occur when the Court concludes that whilst the offence is proved, the circumstances relating to it are such that the Defendant should not receive penalty points or disqualification. Special Reasons cannot be used to reduce the number of points, if the Court finds Special Reasons, there must be no endorsement at all. Special Reasons do not amount to a "defence".
Not Guilty Plea
Clearly, the best way to prevent disqualification is to avoid conviction in the first place. In many cases, it is feasible that there is a viable defence, whether that be because the allegation is simply incorrect or because the Police have not prepared their case properly / have failed to understand the basis of the defence.Pleading Not Guilty
If you admit the nature of the offence but dispute the severity of same, you can reduce the penalty and the prospects of disqualification via a Newton Hearing. For example, if you accept that you were speeding, but deny travelling as fast as alleged, if via the Newton process you persuade the Court that you were travelling more slowly (albeit still above the speed limit) the punishment will be reduced and that could result in a ban being avoided.
For some offences, such as drink driving or death by dangerous driving, a driving ban is obligatory. If you are convicted, the Court has to impose a ban, regardless of the circumstances. However, it is still worth seeking advice / guidance as mitigation presented should reduce the length of the ban and the amount of the fine.Court Guidelines
Persuade the Court to impose a lenient penalty
What is mitigation?
Mitigation is a submission made to the Court either in person, through your legal representative or in writing, with the purpose of reducing the severity / seriousness of the offence, and/or minimising the penalty to be imposed. With compelling mitigation, a ban can often be avoided.
What is a Plea in Mitigation / Mitigating Circumstances?
If you have pleaded guilty or have been found guilty, before the Court imposes any punishment, you will be given the opportunity to present a Plea of Mitigation to persuade the Court to impose the most lenient penalty possible. It can be by personal attendance, or at the Court's discretion, in writing. You can use this process to present mitigating circumstances to encourage the Justices to:
- Reduce penalty points to the lower end of the scale (if the penalty is not fixed);
- If you are at risk of an instant ban, persuade the Court to impose points instead;
- If a ban cannot be avoided, reduce its duration; *
- If more than one offence is alleged, convince the Magistrates to impose points for one charge only;
- Reduce the amount of the fine / increase the length of time allowed to pay;
- Satisfy the Magistrates there is no need for a Court appearance;
* This will require a personal attendance at Court
What should I bear in mind when presenting mitigation to the Court?
Use the process to your advantage
Do not confuse mitigation with a defence
Do not inadvertently raise aggravating factors
Seek legal advice
This is your opportunity to persuade the Magistrates to exercise leniency and ideally on the best terms. It is important that the submission you present is relevant, succinct and pertinent.
It is important that when presenting mitigation, your submission deals with the relevant issues and does not attempt to justify the error. Many drivers fail to use the hearing to their full benefit, becoming confused over the purpose of the process and what they are intending to achieve. In some circumstances, this results in the Court concluding that the mitigation borders on a defence which can end up with the case being listed for a full not guilty trial. If you do wish to challenge the allegation, then plead not guilty and prepare your defence accordingly. However, if your sole purpose is to minimise the penalty, ensure that your submission addresses those issues alone and that your mitigation does not become a defence / complaint about being prosecuted in the first place.
Be conscious of how the Court will interpret your submission. What you believe may be mitigation, the Court may view as aggravating circumstances, which could result in a more serious penalty.
If you have never presented a submission to the Court, it is important to seek legal advice promptly as it can be difficult to establish what information is relevant and what might count against you. Guidance can also provide you with reassurance and prevent unnecessary worry if you are unfamiliar with Court processes etc.
What if I don't think I have any mitigation?
Many individuals prosecuted for a motoring offence believe that they have no mitigation of any description because they do not dispute any aspect of the allegation. However, the reality is that every individual has some mitigation of some description (even admitting the offence promptly is mitigation) and it is normally quite possible to develop strong and compelling mitigation that can be used to reduce the penalty, regardless of the exact circumstances that triggered prosecution. The cost of investigating / preparing the mitigation will inevitably pay for itself reducing the fine / penalty and minimising the stress and worry of dealing with the Court process.
Avoid a totting up disqualification for reaching 12+ penalty points
What is exceptional hardship?
There is no specific legal definition. Exceptional hardship will vary according to the circumstances of the Defendant who will be expected to establish the loss of a driving licence, would go far beyond the inconvenience that would normally be anticipated. The Court will automatically assume that any suspension will result in hardship and will emphasise that is the purpose of a disqualification. You need to show that your reliance upon the licence is so great, that it would be nigh on impossible to cope with a ban, i.e., the hardship caused would be "exceptional".
An exceptional hardship submission does not have to be limited to the licence holder. A ban can potentially be avoided if it can be demonstrated that other parties, who are reliant upon the Defendant to drive, would be adversely affected and unable to overcome the adverse implications that would arise should the Defendant be banned. It therefore makes sense for all aspects of the exceptional hardship case to be considered. Even if you feel that you personally can cope, it may be that the implications for others would avoid a ban regardless of whether you can get by personally.
What if I can show I will lose my job as a result of a driving ban?
The Court will consider this issue, but loss of employment alone is not normally sufficient 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. That said, loss of employment can be used to develop further themes, which combined, can prevent a ban.
Is my exceptional hardship case strong enough?
If you face a totting up ban, your exceptional hardship submission must be thoroughly prepared to have any chance of success. If you simply attend Court and indicate that you will lose your job, you should expect to be disqualified. It is essential that your case is not only properly prepared but does not give the Magistrates the option to conclude that there are alternative solutions or the effect of the ban would not be so bad that you cannot cope. The standard imposed can be quite high, so it is essential that all issues are correctly addressed.
With the correct guidance and support, it is quite feasible that your case will be much stronger as there will undoubtedly be issues that can be used that you had not considered.
If you are not sure whether you can meet the criteria for exceptional hardship, Motor Lawyers can review and provide initial guidance under the no obligation, fixed fee, Summary Telephone Advice service.
I have successfully argued exceptional hardship in the past. Can I use the same arguments again?
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.
Pleading Not Guilty
Defending an allegation
If you enter a not guilty plea, you must assume that the case will be listed for full trial, at which, you and the prosecution witnesses will attend to give evidence / face cross examination. Before you enter a not guilty plea, you should seek advice on the prospects of success and potential implications.
How do I defend an allegation?
Any defence must be absolute, meaning that the allegation is denied in its entirety. A partial admission is a guilty plea, not a defence. 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 to have any prospect of securing an acquittal.
Please note there are distinct differences between defending an allegation, a plea of mitigation, special reasons and exceptional hardship.
What defences are available?
The way to defend an allegation will vary according to the nature of the offence. For some allegations, such as speeding, it will depend on how the evidence has been obtained. Challenging a speeding allegation caught on camera will probably require technical / expert evidence, whereas defending a pursuit check in which the Police Officer has followed your vehicle, will be based on the Officer's conduct and discrepancies in his account.
For some allegations, such as failing to identify a driver, there are statutory defences available but additionally, specific circumstances will also be relevant. There is always a possibility of a technical defence if the Police have not followed the correct procedures but that does not mean that a case will immediately struck out because some minor technical detail is wrong as many mistakes can be rectified prior to a hearing. It therefore makes sense to obtain detailed advice at the earliest opportunity, regardless of the basis upon which you wish to challenge an allegation.
How do I obtain the evidence?
It is a common misconception that there is an obligation upon the Police / CPS to disclose all evidence from the outset and that any failure to do so will immediately result in the case being dismissed. The reality is quite different. Although some Police forces will supply some evidence when issuing a Court process, they do not have to do so and quite often, evidence will not be disclosed until a "not guilty plea" is entered and a specific request for disclosure made. Even then, you may find that evidence arrives only a few days before the trial, or is disclosed at Court.
If you chose to run a not guilty plea, bear in mind that there is an increasing tendency for the Court to expect you to request and demand evidence, rather than simply do nothing in the hope that the CPS fail to serve it voluntarily.
Preparing for Court
How to prepare your case for the best prospects of success
Why do I need to instruct a lawyer in order to retain my driving licence?
When you attend Court, the Magistrates will expect you / your representatives to have thoroughly prepared the case. There is no obligation at all upon the Magistrates to assist you in any way, they are simply there to consider what penalty to impose based on the allegation and the mitigation presented. It therefore makes a great deal of sense to obtain professional guidance to help you understand the way the Court works, what will be expected of you at the hearing and how to build a case to have the best prospects of success. Each case is different and will be interpreted on its own merits by the Magistrates. What may work for one individual could work against another. A detailed review and thorough preparation are essential so that when you do attend Court, you are comfortable that your mitigation submission will be the strongest possible.
By instructing or obtaining advice from a specialist motor lawyer, all aspects of the case will be correctly and thoroughly prepared.
Motor Lawyers can assist you. We can review the offence and advise on the plea, likely penalty and how to influence that outcome favourably. If there are special reasons or other basis to minimise the punishment, we can advise in that respect, alternatively, if it is clear that the offence will be proved, we can prepare mitigation with a view to minimising the penalty / avoiding a ban. If you face a totting up disqualification, we can prepare an exceptional hardship submission. Even if it is clear that there is no prospect at all of avoiding disqualification, we can still support you in reducing the length of the ban and minimising the fine, as well as guiding you through the Court process, so that that is as comfortable as possible.
How can I establish the prospects of success?
If you are uncertain about the strength of your case, need guidance or assistance, Motor Lawyers will review the case in detail and discuss the issues with you via our Summary Telephone Advice service.