What is a totting up ban?
A totting up driving ban, normally for a period of 6 months, is considered by a Magistrates’ Court when a driver accumulates 12 penalty points for offences committed within a period of three years. For example, if a driver already has 9 penalty points and commits a further offence (for which penalty points apply) they they will be ineligible for a fixed penalty and their case will proceed to the Magistrates’ Court.
If a driver has 6 existing penalty points they will be in a position to accept a fixed penalty for speeding and accumulate an additional 3 penalty points (assuming one is offered). However, the driver would not be able to accept a fixed penalty for driving without insurance as this would result in the number of points reaching 12. As a result of the number of existing points on their licence, their case would have to be decided by the Court who may impose a totting up ban.
Fixed penalties are not generally offered for speeding offences which are over 20mph above the speed limit. In such cases, the police normally charge the driver and the outcome will be decided by the Court. Whether the driver will be at risk of a totting up ban depends on the number of existing points on their licence and how many points are imposed for the offence the Court is dealing with.
How will I know when my case has reached Court?
Court proceedings for most endorsable motoring offences (those that carry penalty points) are started by way of a Single Justice Procedure Notice (SJPN). This is a document which is issued by the police with the charge which provides the recipient with 21 days within which to enter a plea of guilty or not guilty. A plea may be entered either by post or online at www.gov.uk/make-a-plea.
Single Justice Procedures were introduced in 2015 in order to cut down on the number of unnecessary hearings listed for motoring offences. Where a full hearing is unnecessary, the Single Justice may sentence the offender without hearing, normally by imposing penalty points.
If a plea of guilty or no plea is entered in response to the SJPN (and the points imposed as a result are likely to reach 12 or more) the Court may issue a notice of proposed driving disqualification. This informs the driver of the fact that they are to be disqualified under totting up. Unless the motorist responds to this notice they will have a disqualification imposed on them automatically without any opportunity to persuade a Court not to do so. However, if a response is received to the notice of proposed driving disqualification then the case will be listed for a hearing where a decision will be made about whether or not to disqualify the driver.
Alternatively, the case may be listed for a full hearing at the Single Justice Procedure if a totting up disqualification is to be considered. If the Magistrates Court is considering a disqualification, then it must issue a notice informing the driver of this as well as the time, date and location of the hearing.
What will happen at the full hearing of my case?
If the case has been listed for a full hearing with a view to considering a totting up disqualification, it is prudent for the defendant attend Court around 45 minutes to an hour before the case due to be heard. The reason for this is that there are likely to be several other cases listed at the same time so the earlier an individual can arrive at court the more likely it is that their case will be called on earlier. When a case is called on the defendant will be asked a number of questions by the Magistrates’ Court Legal Adviser who sits in front of the Magistrates. These will include details of driver’s nationality, date of birth and address. The fact that the driver has already been convicted of the charge will also be confirmed. If an individual is legally represented then their solicitor or barrister will also be identified. The facts of the case will then be summarised by the prosecutor after which the Court will be made aware of the number of existing points on the defendant’s driving licence. The driver and/or their legal representative will then be given the opportunity to present mitigation in relation to the offence as well as presenting any reasons why a disqualification should not be imposed.
On what grounds may I avoid disqualification upon reaching 12 points?
If a driver reaches 12 points, the Court must impose a totting up disqualification unless it is satisfied that exceptional hardship would be caused as a result.
There is no strict definition of what amounts in law to exceptional hardship. Thus, it is important to remember that a disqualification is intended to be punitive in nature and will always cause a certain amount of hardship to the offender. Therefore, a submission that the offender or others will be caused a level of disruption or inconvenience as a result of a disqualification is unlikely to persuade the Court not to disqualify.
The Court must be persuaded that the consequences of a disqualification would be exceptional to the offender or, more importantly, to those that depend on him such as his employers, employees, children or elderly relatives.
Loss of employment which would be caused as a result of disqualification will not always be sufficient to persuade the Court not to disqualify unless it is satisfied that the hardship causes as a result would be exceptional. To illustrate a single person with no dependents and significant savings they could use whilst out of work is much less likely to succeed with an exceptional hardship argument than someone who has a family to support and elderly relatives that depend on him to provide care and be on hand whenever necessary.
Examples of exceptional hardship include:
- A driving ban results in losing a skilled job that would be difficult to replace (potentially meaning ongoing financial hardship beyond the length of the ban)
- A driving ban results in unemployment where the offender is a provider (e.g. the main breadwinner in a home containing a spouse and children)
- The offender is an employer that relies on access to a vehicle in order to provide continued employment to others (especially if currently taking on more staff)
- The offender requires access to a vehicle in order to prevent an employer from experiencing a significant loss of profits that could affect the employment status of others
- Elderly or infirm dependants rely on the offender’s continued access to a vehicle in order to attend regular medical appointments
- A driving ban would result in hardship for the recipients of the offender’s charitable efforts
If an individual has received penalty points (regardless of whether the penalty points result in a totting up ban), they will also likely receive a fine. Fines are imposed depending on the severity of the offence and the driver’s income.
How long do penalty points stay on my licence?
Penalty points are taken into account for 3 years from the date of the offence for totting up purposes. Points are no longer visible on a driving record for 4 years and do not have to be declared to insurance companies after 5 years.
Should I get legal representation in Court?
It is sometimes said that a person who represents him or herself has a fool for a client and generally this old adage rings true. It is argued that unrepresented defendants are generally unfamiliar with the Court process and so will find it harder to explain the salient points of their case. Furthermore, it is more likely that they will focus more on irrelevant issues rather than the most important ones. Without the experience of knowing how to present the case (and how to persuade the Court to do what the defendant is asking) unrepresented individuals will not have as much of a chance of avoiding a disqualification, it is argued.
Another point to consider is that it is also likely that the defendant will be required to answer questions on oath by the prosecution about the hardship that will be caused. In such cases, the support of a solicitor who will be able to steer the case back on the right track and ensure that the Court does not misunderstand the nature of the case could be absolutely invaluable.
Should you choose to instruct us, we will spend as much time as is necessary to ensure that the exceptional hardship argument is prepared thoroughly and is properly substantiated by supporting material such as letters from employers and loved ones. In addition, we’ll also ensure that the Court process runs smoothly and your case is given the level of top quality representation it deserves.
To discuss this matter further, please complete an online enquiry or call us on the number above at any time.