KEEPING A COURIER'S DRIVING LICENCE

04/11/2009

As a result of the increasing number of speed cameras on the road, many drivers are receiving penalty points as a result of either fixed penalty notices or unsuccessful appearances in court.  

The most common offences drivers receive points for are now speeding and mobile phone offences. Whilst less excessive speeding and driving whilst using a mobile phone usually carries with it an endorsement of 3 penalty points and a £60 fine; exceeding the speed limit by more than a few miles per hour can often result in an endorsement of up to 6 points, or even disqualification.

Once a driver finds himself with 12 points on his licence as a result of offences committed within a 3-year period, they will be summonsed to court to appear before the Magistrates or a District Judge. Unless that driver or his representative can put forward a special argument to demonstrate that a lengthy period of disqualification would cause exceptional hardship, the court is bound to disqualify them for a minimum of 6 months. Obviously for professional drivers the impact of such a lengthy ban is likely to cause massive disruption to their lives and is also likely to result in the loss of their jobs, and potentially their homes.

The law is somewhat complicated in this area, and it is therefore advisable to seek specialist legal representation or at the very least expert advice before attempting to put forward any mitigating circumstances to a court.  A driver will only get one opportunity to put forward their argument, so it is imperative that before doing so he or she understands the law and what evidence is required by the court.   

Even the court appearance itself is not a simple, straightforward process.  It is very much like a mini trial. The defendant will usually have to give some evidence and be cross-examined on what they say.

If a driver successfully puts forward an exceptional hardship argument, that gives the court the discretion to either endorse the driver’s licence with the points but not to disqualify them, or alternatively to disqualify the driver for a period which is less than the usual 6 months.  A good advocate can often put forward the argument that the punishment must be proportionate to the defendant and therefore when representing a professional driver, it is often possible to persuade the court to impose a relatively short period of disqualification such as 7 or 14 days.  The professional driver is often able to then use his annual leave for that period and will come to some arrangement with his employer which will prevent them from losing their job.  

In addition, any disqualification imposed under these totting up provisions means that any existing points on a driver’s licence are wiped off.  Obviously the advantage to this is that the driver is not then driving around with the impending risk of a further disqualification if they receive any more penalty points.  Although it is not possible to choose whether a driver would prefer to receive the points but not a ban, or to receive a short period of disqualification, it is possible to ask the court to take a sympathetic view and to impose a short period of disqualification in the alternative.

As mentioned above, the law on exceptional hardship is quite complex and uncertain.  The law states that for hardship to be “exceptional” it must be more than is normally suffered. Loss of employment undoubtedly causes hardship, but whether loss of employment in itself amounts to exceptional hardship to the defendant is a matter of fact and degree to be determined in each case.  

Exceptional hardship is not confined just to the hardship that the disqualification would cause to the defendant and it is often possible to put forward arguments in respect of the hardship which would be suffered by other persons who are wholly innocent. For example, if the driver has an elderly relative or other family member who is highly dependent upon them and there is no other person who can assist, it may be possible to ask the court to find exceptional hardship on those grounds.

It does seem to be the case that with the recent increase in the number of speed cameras on the road, and perhaps the fact that most drivers have at some point had some points on their licence, magistrates are becoming somewhat more sympathetic to drivers, and in particular professional drivers.  With the economic climate as it is, it is even more difficult for people to find jobs and this is surely something the magistrates are bearing in mind when making their decisions. As specialist Road Transport solicitors, we are certainly having a significant amount of success in persuading courts to find exceptional hardship.

It must be noted that if an exceptional hardship is put forward then that same argument cannot be put forward again within 3 years.  For example, if a driver argues exceptional hardship on the basis that he would lose his job, he cannot use that argument again but may use a different argument such as hardship to a dependent family member.

In any event, given the devastating effect the loss of a licence can have on any driver, but in particular a professional driver, it is important to speak to the right people to ensure the best possible chance of retaining a licence.