On 1st October 2020, a revised Magistrates’ Court Sentencing Guideline came into force.

The Sentencing Council published the following Response to consultation.

Exceptional hardship in ‘Totting up’ disqualifications

The issue

Where an offender incurs 12 or more penalty points on a driving licence, section 35 of the Road Traffic Offenders Act 1988 requires they must be disqualified for at least six months unless ‘the court is satisfied, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction and thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified.’ The explanatory materials contained guidance for magistrates on how this should be applied but users had suggested that more information would be helpful.
The Council therefore consulted on a fuller explanation.
The responses and subsequent changes
This is the question in the consultation that provoked the most interest. In summary:
• Several respondents made suggestions that would require changes to legislation.
• Others simply agreed with the proposals.
• Some respondents felt that while the intention stated in the consultation was: ‘more
information on the procedure to be followed in such cases and guidance on the consideration of exceptional hardship applications would assist in ensuring that these are dealt with fairly, consistently and in line with legislation and case law’, the impact of the proposals would be to weaken rather than strengthen the test for exceptional hardship.
• Many magistrates wanted examples of what does and does not constitute exceptional hardship stating that otherwise decisions will continue to be inconsistent.
• Some respondents felt that the guidance did not accurately reflect the legislation or case law.
There were numerous suggestions as to how the explanation could be made clearer and more accurate. There were some points about which respondents gave conflicting views.
With regard to guidance on considering a discretionary period of disqualification, the Justices’ Clerks’ Society referred to Jones v DPP [2001] R.T.R 8 as authority for explicitly pointing sentencers towards imposing at least the totting ban by including:
if the court thinks that the defendant should be disqualified for the longer period under the totting up provisions, impose points and a totting disqualification. Where the defendant has persistently offended against Road Traffic laws, it is likely that the totting provisions will apply, rather than a discretionary disqualification
1 See for example, R v Roth [2020] EWCA Crim 967
Changes to the MCSG and explanatory materials, response to consultation 9 Whereas the Law Society said:
We note that the guideline also contains an often-missed point that a totting disqualification may be disproportionate and there is a possibility that a discretionary disqualification may be more appropriate.
It is important that the guideline is not too formulaic, otherwise it may remove the discretionary nature of imposing a disqualification and which may be to the detriment of a defendant who is trying to strongly argue for a discretionary period of short disqualification and where the tribunal considers this to be an appropriate sentence, and not disproportionate to impose the totting disqualification. In our experience it is an option most magistrates forget, and so having a reminder of the discretionary disqualification power in the guideline would be a useful reminder.
On the same point a magistrate suggested this form of words:
The court should take into account the seriousness of the offence and the offender's driving record in determining whether the threshold for a discretionary disqualification has been crossed. If this is not the case points should be imposed even if this results in the driver becoming liable to a totting disqualification.
One respondent suggested that ‘the guidance should make it clear that preference should be given to imposing a disqualification shorter than the ordinary minimum period rather than no disqualification at all, as per the power given in s.35(1) RTOA 1988; imposing no disqualification at all should be a highly exceptional occurrence, reserved only for the most highly exceptional cases.’
One magistrate felt that the guidance could be strengthened by a statement such as: ‘by their very nature successful applications for exceptional hardship will be rare’.
Several magistrates made the point that unrepresented offenders were at a disadvantage when seeking not to have a ‘totting’ ban imposed and that those who could afford a ‘clever’ lawyer would find a way to avoid disqualification. Others were concerned that notwithstanding the reference to the Equal Treatment Bench Book the circumstances of lower income offenders and their families (particularly in rural areas) would not be appreciated by many courts.
Several respondents felt that too much emphasis was put on ‘exceptional circumstances’ which makes it seem as though there is no other possible ground for avoiding or reducing the disqualification.
A barrister specialising in road traffic law pointed out that the proposed wording fails to identify that the burden of proof is on the defendant to the civil standard.
The Council carefully considered the various views and suggestions and agreed a revised version of the guidance that more closely reflected the wording in the legislation and incorporated several of the points made above, taking into account case law. The Council rejected the idea of providing examples of exceptional hardship as these will inevitably be case specific, but has incorporated more guidance on matters a court should take into account. Inevitably, because the revised guidance is more comprehensive, it is also longer but the Council is satisfied that it is as concise as it can be while still covering all the necessary points. It takes effect from 1 October 2020.

NEW GUIDELINE

Incurring 12 or more penalty points within a three-year period means a minimum period of disqualification must be imposed (a ‘totting up disqualification’) – s.35 Road Traffic Offenders Act (RTOA) 1988.

The minimum period is:

six months if no previous disqualification is to be taken into account
one year if one previous disqualification is to be taken into account
two years if more than one previous disqualification is to be taken into account.

A previous disqualification is to be taken into account if it is:

not less than 56 days; and
imposed within the three years immediately preceding the date on which the current offence (or most recent of the current offences) was committed.

Totting up disqualifications, unlike other disqualifications, erase all penalty points.

The court should first consider the circumstances of the offence, and determine whether the offence should attract a discretionary period of disqualification. But the court must note the statutory obligation to disqualify those repeat offenders who would, were penalty points imposed, be liable to the mandatory “totting” disqualification, and should ordinarily prioritise the “totting” disqualification ahead of a discretionary disqualification.

If the offender has 12 or more penalty points the court must order the offender to be disqualified for not less than the minimum period unless the court is satisfied, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction and thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified – s.35(1) RTOA 1988.

In deciding whether there are grounds to reduce or avoid a totting up disqualification the court must not take into account:

(a) any circumstances that are alleged to make the offence (or any of the offences whose penalty points are to be taken into account) not serious,

(b) hardship, other than exceptional hardship, or

(c) any circumstances which, within the three years immediately preceding the conviction, have been taken into account to reduce or avoid a totting up disqualification.

– s.35(4) RTOA 1988

When considering whether there are grounds to reduce or avoid a totting up disqualification the court should have regard to the following:

It is for the offender to prove to the civil standard of proof that such grounds exist. Other than very exceptionally, this will require evidence from the offender, and where such evidence is given, it must be sworn.
Where it is asserted that hardship would be caused, the court must be satisfied that it is not merely inconvenience, or hardship, but exceptional hardship for which the court must have evidence;
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.
If a motorist continues to offend after becoming aware of the risk to their licence of further penalty points, the court can take this circumstance into account.
Courts should be cautious before accepting assertions of exceptional hardship without evidence that alternatives (including alternative means of transport) for avoiding exceptional hardship are not viable;
Loss of employment will be an inevitable consequence of a driving ban for many people. Evidence that loss of employment would follow from disqualification is not in itself sufficient to demonstrate exceptional hardship; whether or not it does will depend on the circumstances of the offender and the consequences of that loss of employment on the offender and/or others. Useful information can be found in the Equal Treatment Bench Book (see in particular Chapter 11);

Where it finds that there are grounds for mitigating the ‘normal consequences of the conviction’, the court may consider whether this can be achieved by ordering a period of disqualification which is shorter than the statutory minimum or by ordering that the offender should not be disqualified at all.

Where the court does not find grounds for mitigating the normal consequences of the conviction then a period of disqualification of at least the statutory minimum must be imposed.

Consult your legal adviser for further guidance on minimum periods and applications for avoiding or reducing the minimum period.

The Guideline is online here: https://www.sentencingcouncil.org.uk/explanatory-material/magistrates-court/item/road-traffic-offences-disqualification/3-totting-up-disqualification/