Every few months a story appears in the national press about a driver who has managed to stay on the road despite having gone far above 12 penalty points as a result of repeated speeding or other endorsable offences (the normal maximum number of points you can receive with a three year period before being liable to a 6 month disqualification, commonly referred to in legal circles as “totting up”). The most recent example was a story last week about a driver who had 30 penalty points but had still avoided disqualification (my own personal best is a client who avoided a ban with a meagre 21 points on his licence). These stories are usually met with indignation by the various road safety charities such as BRAKE and ROADSAFE.

At the start of this year, I appeared on a radio programme with a lady from BRAKE about this topic. After I had spent some time discussing under what circumstances a Court has the power NOT to disqualify in a “totting up” situation, she went on to express her disgust that some drivers were able to, in her words, flout the law by continuing to drive with 12 or more points. The reality is that the opposite is true as the law is what provides a Court with the discretion not to disqualify for the normal six month period. This can be as a result of any consequences which are regarded, in the language of the legislation “to mitigate the normal consequences of a conviction”. There are effectively three exceptions. Firstly, any circumstances which are used to argue that the offence was not a serious one cannot be used. Secondly, it may not take into account the hardship that would be caused by a disqualification unless the hardship is exceptional. Finally, the court is not allowed to take into consideration any circumstances which have already been used in the 3 years preceding the date of the hearing.

The most common scenario is where a driver reaches 12 points but argues that exceptional hardship would arise if he or she was to be disqualified. In order to succeed with this argument, the driver must establish that he would be affected by a 6 month disqualification in an exceptional way. For that reason, proving that the driver will lose their job if disqualified will not always be enough to persuade the Court not to disqualify as many other people would be in the same position. To have a really good chance of success it will be necessary to establish that the hardship will have a serious affect on others, for example, employers, colleagues or dependents. After all, they are blameless in the whole situation and it would be unfair for their lives to be adversely affected by someone else’s transgressions.

If you are in a totting up situation and will lose your job if disqualified, prepare properly by obtaining a letter from your employer to support your case and if possible some other proof of the wider consequences the ban would have. Finally, do not make the mistake many people make and be complacent. The prosecution rarely give people an easy ride. The Court staff may help you but only to a point. An expert motoring solicitor is what you really need to negotiate the fine line between success and failure in these situations.