If a driver accumulates 12 or more penalty points within a 3-year period they must be disqualified for at least 6 months under the totting-up provisions. Disqualification can be avoided however if the driver can prove that the loss of licence will cause exceptional hardship to themselves and others. Exceptional hardship can only be argued where the offence in question carries penalty points and where the driver faces disqualification under the totting-up provisions. This means that Exceptional hardship cannot be argued in cases involving mandatory disqualification, such as drink driving or dangerous driving.
Exceptional Hardship (Section 35(4)(b) Road Traffic Offenders Act 1988)
There is no strict definition of exceptional hardship, and each case will depend on its own merits and circumstances. It is important to note that the hardship suffered must be exceptional and should, go beyond what would normally be suffered by someone who loses their licence. As such, loss of employment is unlikely to satisfy the exceptional hardship test, as it is sometimes a natural consequence of losing your licence. However, if it can also be established that the loss of employment will have a further detrimental impact and cause hardship to other persons then this can amount to exceptional hardship. In all cases the driver facing disqualification will have to show that he has taken steps to minimise the impact that losing the licence will have, such as looking for alternative employment. In these circumstances, the court should consider the current economic climate and the availability of alternative jobs. If a driver is unlikely to find alternative employment because of his age or lack of skills, then these are factors that should also be considered by the court.
Procedure for Exceptional Hardship
An application for Exceptional Hardship must be raised by the driver at the time of sentence. This happens at the point at which a driver is convicted or where they accept an offence was committed. Once an application for exceptional hardship has been made the court will fix a date for a hearing which is called an exceptional hardship proof. The responsibility to prove exceptional hardship is on the driver. In practice the driver will require to give evidence and lead other evidence to support the application for Exceptional Hardship. If this evidence is not accepted by the prosecutor, the driver can be cross-examined and the evidence challenged. Conversely, the prosecutor may accept what is said by the driver. In this situation, the court can simply hear submissions in the absence of evidence.
The Court’s Decision
At the conclusion of the hearing the court will decide whether exceptional hardship has been established. If the argument is successful, the court will impose penalty points and then order that no disqualification is made or reduce the period of disqualification. This decision is recorded on the driving licence, and it is important to note that a driver cannot rely on the same grounds to support another application for within a three-year period. If the argument for exceptional hardship is unsuccessful the court will impose the appropriate number of points and disqualify the driver for a minimum period of 6 months. The period of disqualification increases to 12 months if the driver has been previously disqualified. If there is disqualification under totting-up, it has the effect of wiping the slate clean so that all the points that resulted in the ban will be removed from the licence.