Special Reasons in Speeding Cases

How to avoid penalty points for speeding

If an offender pleads guilty to a speeding offence he may escape endorsement if he can establish that there are Special Reasons not to endorse his licence.

The onus of proof to establish special reasons is on the defendant and the standard of proof is on the balance of probabilities. Special reasons must be supported by evidence. If the court finds special reasons then it is not bound to not endorse penalty points; it merely means that a discretion to not endorse then arises. To amount to special reasons a matter must:

  1. be a mitigating or extenuating circumstance

  2. not amount in law to a defence to the charge

  3. be directly connected wiht the commission of the offence

  4. be one which the court ought properly to take into consideration

Examples of Special Reasons in speeding cases

  • Emergency; Whittal v Kirkby [1946] 2 All ER 552

  • Emergency (hypoglycaemic attack); Warring Davies v DPP [2009] EWHC 1172

  • Illness (incontinence); Marks v West Midland Police [1981] RTR 471

  • Absence of signage; Burgess v West [1982] RTR 269

  • Solicitors’ clerk late for court; Police Prosecutor v Humphreys [1970] Crim LR 234

Duress and drink driving

A defendant who commits a crime under duress may in certain circumstances be excused liability. The defence can arise where the duress results from threats or the circumstances in which you find yourself.

Duress

The four elements of duress are as follows:

  1. That you reasonably believed that threats of death or serious injury had been made against you.

  2. That you reasonably believed that the threats would be carried out immediately and the threat was effective in the sense that there was no reasonable avenue of escape open to you to avoid the perceived threat

  3. That the threat of death or serious injury was the direct cause of you committing the offence.

  4. A sober person of reasonable firmness of your age, sex and character would have done what you did.

The prosecution must prove your guilt. It is for them to prove that the defence of duress does not apply. It is not for you to prove that it does apply.

Caselaw

There are several authorities regarding drink driving and duress.  Some of which are outlined in brief below:

DPP v Jones [1990] RTR 33

The defendant had been subjected to an attack in the car park of a public house. He got into his car which was then hit and kicked. He decided his only means of escape was to drive away. He continued to his home, a distance of one-and-a-half to two miles. The court held that the defence of necessity was available for a part of the journey to his house. The defendant did not even bother to check whether he was being pursued, whether on foot, or in a vehicle or in any other way. The defence of necessity did not avail the defendant other than for the initial part of the journey. It was unnecessary for him to have continued all the way home in his car. He could easily, especially as it appears that he was not being pursued, have pulled into a side road or into some other convenient place and proceeded for the rest of his journey home on foot. The defence of duress was not available to the defendant because he drove for a longer period than was necessary.

DPP v Bell [1992] Crim. L.R. 176

The defendant had been out drinking with some friends. Some trouble broke out which caused him to run back to his car pursued by others who were less than well disposed towards him. Fearing serious physical injury, he drove off for some distance in a state of terror. The fact that he drove only for some distance down the road and not all the way home was of significance. The defence of duress applied and had not been disproved by the prosecution.

DPP v Pittaway [1994] Crim. L.R. 600

The defendant ran 200yds home from a party outside which she had been the subject of angry words and unspecified threats from a man with whom she had formed a relationship, hid in her car for five minutes and then drove 200yds before being stopped. The man she was seeking to avoid was not in the vicinity at the time. In the court’s view, the justices had neglected to apply the objective limb of the test, since there was no evidence in either case of a threat of death or serious bodily injury.

DPP v Tomkinson [2001] R.T.R. 38

Following a New Year’s Eve party, the defendant was violently assaulted by her husband, who also injured himself and then departed in a taxi for hospital having left her without a phone, but saying that police were on their way and that she had better leave before he returned home. The police having failed to arrive, she left her house at about 6am to drive to her former home (where her children were) some 72 miles away. She was stopped by police about 9.30am and when breathalysed was found to be over the prescribed limit. The defence of duress did not avail her; she was no longer subjected to any effective threat of violence when she left the immediate area of her home in her car to commence the long journey from Harrogate to Sale, and there was no basis for the justices’ conclusion that a sober woman of reasonable firmness would or might have responded to the situation as the defendant did and drive 72 miles over the Pennines

CPS v Brown [2007] EWHC 3274

Mr Brown said that he had driven to avoid a violent confrontation following a threatening phone call. At the time he was stopped there was no evidence that the threat was continuing or that he reasonably believed he was being pursued. The case was remitted to the magistrates’ court with a direction to convict. The court did not have to resolve the question of whether or not the defence was available at the time he got into the car as it was not available when he was stopped.

Notice of Proposed Driving Disqualification

A defendant will be sent a notice of proposed driving disqualification if convicted of an offence and the court is considering whether to disqualify - because of the seriousness of the offence or the number of penalty points on the defendant's licence that were live at the time of the offence.

Receipt of a notice of proposed driving disqualification does not mean that a disqualification is inevitable. In many cases, a disqualification can be avoided - especially if the defendant can establish that exceptional hardship would follow from disqualification.

The notice will include a date by which a reply must be sent to the court. The reply can be sent by email or post.

If no reply is received then the court will proceed in the absence of the defendant and is entitled to disqualify in absence. The notice warns the defendant that a disqualification in absence would be immediate (from the deadline to respond).

There is usually a form to complete with two options:

A) No further information. I have no further information to give to the court and want the court to proceed in my absence. I understand that I may be disqualified on or after [date] and should not drive from that date until the result is confirmed by the court

B) I want to attend court. I wish to give more information to the court and request a hearing date to be set. I am unable to attend court on the following dates: [list avoid dates]

 

ADVICE

Disqualification from driving has serious consequences for many people.  In many cases, disqualification can be avoided where the case is properly prepared for court and the best mitigation is presented to the court. Instructing a direct access barrister is often less expensive than instructing a solicitor.

I have extensive experience and specialist knowledge of motoring offences.  I am regularly instructed by solicitors, corporations and members of the public. Anyone can instruct me directly pursuant to the Public Access scheme.

I provide a free telephone consultation service to new clients. My fees are reasonable and affordable. Most services are performed on an agreed fixed fee basis.  I will deal with your case from start to finish. You will not instruct me but get someone else at court. Your case will not be prepared by unqualified paralegals. I do all of the work on your case. Please contact me for further information.

Driving whilst using a hand-held mobile phone

The Road Vehicles (Construction and Use) Regulations 1986 prohibit driving whilst using a hand-held mobile telephone or a hand-held device (other than a two-way radio) which performs an interactive communication function by transmitting and receiving data.

The offence is made out if the defendant is:

(a) driving a motor vehicle on a road; AND
(b) holding the phone in his hand; AND
(c) using it.


There is an exemption which allows the use of a hand-held phone for a genuine emergency call where it would be unsafe for a driver to stop driving to make the call.

Legislation does not require the hand-held phone to be used for an interactive communication function.

The legislation does not set out what is meant by 'using'. However, in a ministerial statement in 2003 the following was said:


'The offence will apply to drivers speaking or listening to a phone call, using a device interactively for accessing any sort of data, which would include the Internet, sending or receiving text messages or other images if it is held in the driver's hand during at least part of the period of its operation. We do not wish to prohibit the carrying of hand-held phones in vehicles or require them to be switched off. A phone may therefore continue to be used to receive data when it is in a vehicle providing the driver is not holding it. Within the context of holding a phone, pushing buttons on a phone while it is in a cradle or if it is being operated via buttons on the steering wheel or handlebars of a motorbike would not, in our view, breach the new regulation.'

The offence can only be committed on a road (rather than 'on a road or other public place') and therefore if you are in a McDonalds car park or similar then you would likely have a defence to using a mobile phone on a road.

The offence is subject to a £200 fixed penalty and 6 penalty points. If the matter is dealt with at court then the there is a fine of up to £1000 and 6 penalty points or discretionary disqualification of any length.

New sentencing guidelines for motoring offences

The Sentencing Council has published revised guidelines for offences in the Magistrates’ Court Sentencing Guidelines.

The guidelines apply to all offenders aged 18 and older who are sentenced on or after 24 April 2017, regardless of the date of the offence.

 

Careless driving

What's new: The Council decided to remove ‘inexperience of the driver’ from the lower culpability factors, and added ‘vehicle used for the carriage of heavy goods or for the carriage of passengers for reward’ to higher culpability.

Driving whilst disqualified

Failure to provide a specimen for analysis

Failure to provide a specimen for analysis (in charge)

Fail to stop/report an accident

What's new: The Council has changed the factor 'subsequently reported’ or ‘significant attempt made to comply with duty to ‘reasonably believed identity known’ in line with the suggestion.

Driving with no insurance

Speeding

What's new - An increase the penalty for the top band of seriousness from a Band B to a Band C fine - "to ensure that there is clear increase in penalty as the seriousness of offending increases."

Driving whilst unfit through drink or drugs

In charge when unfit through drink or drugs

 

 

 

 

Maximum sentences

Road Traffic Act 1988

Section 1 (causing death by dangerous driving) - 14 years

Section 1A (causing serious injury by dangerous driving) - 5 years

Section 2 (dangerous driving) - 2 years

Section 2B (causing death by careless driving) - 5 years

Section 3A (causing death by careless driving under the influence of drink or drugs) - 14 years

Section 3ZB (causing death by driving when unlicensed or uninsured) - 2 years

Section 3ZC (causing death by driving when disqualified) - 10 years

Section 3ZD (causing serious injury by driving whilst disqualified) - 4 years

Secton 4(1) (driving whllst unfit through drink or drugs) - 6 months

Section 4(2) (being in charge whilst unfit through drink or drugs) - 3 months

Section 5(1)(a) (driving or attempting to drive with excess alcohol) - 6 months

Section 5(1)(b) (being in charge of a motor vehicle with excess alcohol) - 3 months

Section 5A(1)(a) (driving with a specified controlled drug above specified limit) - 6 months

Section 5A(1)(b) (being in charge of a motor vehicle with a specified controlled drug above specified limit) - 3 months

 

Single Justice Procedure Notice - SJPN

The Criminal Justice and Courts Act 2015 introduced the Single Justice Procedure which applies only to cases involving adults charged with summary-only non-imprisonable offences. The single justice procedure took effect from 13 April 2015. It will enable such cases to be dealt with by a single magistrate sitting with a legal adviser on the papers without the attendance of either a prosecutor or the defendant. The defendant will instead be able to engage with the court online (or in writing) and the case will not be heard in a traditional courtroom.

It will be for prosecutors to identify cases which might be suitable for the single justice procedure. These will be commenced by a written charge and a new type of document called a ‘single justice procedure notice.'

The single justice procedure notice will be sent to the defendant explaining the offence which has given rise to the proceedings, the options available to the defendant, and the consequences of not responding to the notice. It will be accompanied by the evidence upon which the prosecutor will be relying to prove the case.

The notice will give the defendant a date to respond in writing to the allegation - rather than a date to attend court. However, the defendant will have the right to request a traditional hearing in open court. If he wishes to plead not guilty, or otherwise wants to have a hearing in a traditional courtroom, the defendant can indicate these wishes in the response to the single justice procedure notice. In such circumstances the case will be referred to a traditional court and the case will be managed in the normal way.

In cases where a defendant pleads guilty and indicates that he would like to have the matter dealt with in his absence, or fails to respond to the notice at all, a single magistrate will consider the case on the basis of the evidence submitted in writing by the prosecutor, and any written mitigation from the defendant. The single magistrate can convict and sentence, or dismiss the charge as appropriate.

If a single justice considers at any point that it would be inappropriate to conduct the case under the single justice procedure, the justice can refer it to a traditional magistrates’ court.

 

 

 Court clerk (legal adviser) shown here advising a Justice of the Peace (Magistrate).  Photo credit: Law Society Gazette.

Court clerk (legal adviser) shown here advising a Justice of the Peace (Magistrate).  Photo credit: Law Society Gazette.

 

HELP WITH YOUR CASE

I'm often asked to advise about plea and the correct strategy to best deal with Single Justice Procedure Notices.  I frequently draft mitigation statements for my clients and the cost of doing that is relatively small. Please contact me by email for further details.

 

IMPORTANT Advice

A Written Charge and Single Justice Procedure Notice must be issued "at the same time" and within 6 months of the index offence. The day of the offence is excluded from the calculation. Some police authorities are failing to adhere to the rules and proceedings are sometimes discontinued where this is the case. The court has no jurisdiction to hear a case commenced outside of the statutory time limit.

If you receive a Single Justice Procedure Notice then you should ascertain:

(i) the date of the alleged offence

(ii) the date on which a Written Charge document was issued.

(iii) the date on which a Single Justice Procedure Notice was issued.

(iv) were the aforementioned documents issued "at the same time?"

The Posting Date is not necessarily the Issue date.

Section 15(2)(bb) of the Prosecution of Offences Act 1985 makes clear that for the purposes of that Act, proceedings in relation to an offence are instituted - "when the written charge and single justice procedure notice are issued."

Rule 7.2(5)(b) of the Criminal Procedure Rules 2015 states that - "an authorised prosecutor must issue a written charge not more than 6 months after the offence alleged." Note that section 29(2) of the Criminal Justice 2003 Act provides that - "where a relevant prosecutor issues a written charge it must at the same time issue ... a single justice procedure notice." A prosecutor must not issue a Written Charge document but defer the issue of the Single Justice Procedure Notice. 

It is clear from section 29(2B) of the 2003 Act, that the intended recipient of a single justice procedure notice is the defendant. It may be noted that the so-called "new method" of commencing proceedings places the obligation on the prosecutor to issue documents to the Defendant. This is done without reference to the court - although once a Written Charge is issued to the Defendant then the prosecutor must immediately inform the court officer - see Crim PR 2015, r.7.2(3).

I am aware that some police prosecutors have failed to adapt to the "new method" of instituting proceedings. They sometimes mistakenly think that 'laying an information' is the correct procedure for a SJPN case. It isn't. If proceedings are issued late then you may have a defence to the charge. If you require advice about this or are at risk of a driving disqualification then please contact me by email.

JUSTICES CLERKS SOCIETY GUIDANCE

In August 2017, the JCS issued some guidance regarding time limits for instituting proceedings commenced by Written Charge (Requsitions and Single Justice Procedure Notices); see JCS News Sheet 12/2017.

"At what point is the written charge issued for the purposes of time limits for prosecution?

The Society’s view is that a written charge is issued when the prosecutor determines to issue it and time runs from that point. It does not run from the date when the charge and SJPN are served on the court (or defendant)."
 

"Is issue of the charge only complete when it has been notified to the court?

It follows from the above that the written charge is issued when the prosecutor issues it under s. 29(1). “Issue” is not defined in the Act, and thus bears its dictionary meaning of “To send forth, give out”. Service on the court is a separate process under s. 29(3) and the Criminal Procedure Rules observe the same distinction. Receipt by the court, therefore, as noted above, is relevant only as evidence of the date of issue."

"What are the consequences if a prosecutor sends a SJPN to the defendant (or court) at a later date from that on which they issued the written charge?

Issue of the written charge, issue of the SJPN, and the posting (service) of the two are all different things. However s. 29(2) states that the prosecutor must issue the SJPN “at the same time” as issuing the written charge. The Criminal Procedure Rules repeats this.

It has therefore been argued that the posting of a SJPN many weeks after issue of the written charge would invalidate the process, requiring dismissal. In the view of the Society this again confuses the question of “issue” and “serve”: service is a procedure subsequent to issue.

In reality, the decision of a prosecutor to issue a written charge will almost invariably be accompanied by a decision to proceed by way of SJPN, and thus the issue of both documents will be virtually simultaneous. Thereafter there will be a delay, whether long or short, in posting or emailing the charge and SJPN, but that has no impact on the validity of the process of issuing them.

There may however be two adverse consequences for the prosecutor. Firstly, a long delay between the date of issue, as asserted by the prosecutor, and the date of service, may cast doubt on the truth of that assertion, particularly if the date of service was outside the six month period prescribed in s. 127 "

Comment:

The advice from the Justices Clerks Society is largely accurate; both a Written Charge and Single Justice Procedure Notice must be issued “at the same time” and within 6 months of the index offence. 

If you receive a Single Justice Procedure Notice then you should ascertain:

(i) the date of the alleged offence

(ii) the date on which a Written Charge document was issued

(iii) the date on which a Single Justice Procedure Notice was issued

(iv) were the aforementioned documents issued "at the same time?"

Put the prosecution to proof on the aforementioned.  Require evidence to be produced.

 

 

THE LAW PERTAINING TO SINGLE JUSTICE PROCEDURE NOTICES –

 

Criminal Justice Act 2003 c. 44

Section 29 - New method of instituting proceedings

 

(1) A relevant prosecutor may institute criminal proceedings against a person by issuing a document (a "written charge") which charges the person with an offence.

(2) Where a relevant prosecutor issues a written charge, it must at the same time issue—

(a) a requisition, or

(b) a single justice procedure notice.

(2A) A requisition is a document which requires the person on whom it is served to appear before a magistrates’ court to answer the written charge.

(2B) A single justice procedure notice is a document which requires the person on whom it is served to serve on the designated officer for a magistrates’ court specified in the notice a written notification stating—

(a) whether the person desires to plead guilty or not guilty, and

(b) if the person desires to plead guilty, whether or not the person desires to be tried in accordance with section 16A of the Magistrates’ Courts Act 1980.

(3) Where a relevant prosecutor issues a written charge and a requisition, the written charge and requisition must be served on the person concerned, and a copy of both must be served on the court named in the requisition.
 

(3A) Where a relevant prosecutor issues a written charge and a single justice procedure notice, the written charge and notice must be served on the person concerned, and a copy of both must be served on the designated officer specified in the notice.
 

(3B) If a single justice procedure notice is served on a person, the relevant prosecutor must—
at the same time serve on the person such documents as may be prescribed by Criminal Procedure Rules, and serve copies of those documents on the designated officer specified in the notice.

 

(3C) The written notification required by a single justice procedure notice may be served by the legal representative of the person charged on the person’s behalf.

Section 29(4) of the Criminal Justice Act 2003 is not yet in force. When it comes into force, a relevant prosecutor will not have the power to lay an information for the purpose of obtaining the issue of a summons under section 1 of the Magistrates’ Courts Act 1980.

 

Criminal Justice Act 2003 c. 44

Section 30 - Further provision about new method


(1) Criminal Procedure Rules may make—

provision as to the form, content, recording, authentication and service of written charges, requisitions or single justice procedure notices, and

(b) such other provision in relation to written charges, requisitions or single justice procedure notices as appears to the Criminal Procedure Rule Committee to be necessary or expedient.

...

(5) Except where the context otherwise requires, in any enactment contained in an Act passed before this Act—

(a) any reference (however expressed) which is or includes a reference to an information within the meaning of section 1 of the Magistrates' Courts Act 1980 (c.43) (or to the laying of such an information) is to be read as including a reference to a written charge (or to the issue of a written charge),

(b) any reference (however expressed) which is or includes a reference to a summons under section 1 of the Magistrates' Courts Act 1980 (or to a justice of the peace issuing such a summons) is to be read as including a reference to a relevant prosecutor issuing a requisition), and

(c) any reference (however expressed) which is or includes a reference to a summons under section 1 of the Magistrates' Courts Act 1980 (or to a justice of the peace issuing such a summons) is to be read as including a reference to a single justice procedure notice (or to a relevant prosecutor issuing a single justice procedure notice).

(6) Subsection (5) does not apply to section 1 of the Magistrates' Courts Act 1980.

 

Criminal Procedure Rules 2015, Part 24

Single justice procedure: special rules

24.9.(1) This rule applies where

(a)  the offence alleged

(i) can be tried only in a magistrates’ court, and (ii) is not one punishable with imprisonment;

(b)  the defendant is at least 18 years old;

(c)  the prosecutor has served on the defendant

(i) a written charge,

(ii)  the material listed in paragraph (2) on which the prosecutor relies to set out the facts of the offence,

(iii)  the material listed in paragraph (3) on which the prosecutor relies to provide the court with information relevant to sentence,

(iv)  a notice that the procedure set out in this rule applies,

(v)  a notice for the defendant’s use if the defendant wants to plead guilty,

(vi)  a notice for the defendant’s use if the defendant wants to plead guilty but wants the case dealt with at a hearing by a court comprising more than one justice, and

(vii)  a notice for the defendant’s use if the defendant wants to plead not guilty; and

the prosecutor has served on the court officer

(i) copies of those documents, and
(ii) a certificate of service of those documents on the defendant.

(2) The material that the prosecutor must serve to set out the facts of the offence is

(a)  a summary of the evidence on which the prosecution case is based;

(b)  any

(i) written witness statement to which Part 16 (Written witness statements) applies, or (ii) document or extract setting out facts; or

(c)  any combination of such a summary, statement, document or extract.

(3) The material that the prosecutor must serve to provide information relevant to sentence is

(a)  details of any previous conviction of the defendant which the prosecutor considers relevant, other than any conviction listed in the defendant’s driving record;

(b)  if applicable, a notice that the defendant’s driving record will be made available to the court;

(c)  a notice containing or describing any other information about the defendant, relevant to sentence, which will be made available to the court.

(4) Not more than 21 days after service on the defendant of the documents listed in paragraph (1)(c)

(a)  a defendant who wants to plead guilty must serve a notice to that effect on the court officer and include with that notice

(i) any representations that the defendant wants the court to consider, and (ii) a statement of the defendant’s assets and other financial circumstances;

(b)  a defendant who wants to plead guilty but wants the case dealt with at a hearing by a court comprising more than one justice must serve a notice to that effect on the court officer;

(c)  a defendant who wants to plead not guilty must serve a notice to that effect on the court officer.

(5) If within 21 days of service on the defendant of the documents listed in paragraph (1)(c) the defendant serves a notice to plead guilty under paragraph (4)(a)

(a)  the court officer must arrange for the court to deal with the case in accordance with that notice; and

(b)  the time for service of any other notice under paragraph (4) expires at once.

(6) If within 21 days of service on the defendant of the documents listed in paragraph (1)(c) the defendant wants to withdraw a notice which he or she has served under paragraph (4)(b) (notice to plead guilty at a hearing) or under paragraph (4)(c) (notice to plead not guilty), the defendant must

(a)  serve notice of that withdrawal on the court officer; and

(b)  serve any substitute notice under paragraph (4).

(7) Paragraph (8) applies where by the date of trial the defendant has not

(a) served notice under paragraph (4)(b) or (c) of wanting to plead guilty at a hearing, or wanting to plead not guilty; or

(b) given notice to that effect under section 16B(2) of the Magistrates’ Courts Act 1980(a). (8) Where this paragraph applies

(a)  the court may try the case in the parties’ absence and without a hearing;

(b)  the court may accept any guilty plea of which the defendant has given notice under paragraph (4)(a)

 

 

Mitigation

In 2007, the Prison Reform Trust published a paper on the role of personal factors in sentencing. The research identifed the following mitigating factors cited by sentencers as affecting sentence.

1. The criminal act

  • Lack of seriousness/impact of offence
  • Played minor role in relation to others
  • Received ‘rough justice’ during criminal act

2. Immediate circumstances of the offence

  • Acted under pressure from/on behalf of others
  • Provocation/threat
  • Highly emotional/distressed
  • Lack of understanding of offence
  • Spontaneous/opportunistic offence
  • No intention to cause harm
  • Offence was ‘error of judgement’

3. Wider circumstances at time of the offence

  • Youth
  • Difficult family/social circumstances
  • Financial pressures
  • Social / intellectual limitations
  • Pressing personal or family need
  • Vulnerable/immature/naïve
  • Psychiatric illness/problems

4. Response to offence and prosecution

  • Remorse (and efforts at reparation)
  • Faced up to/understands criminal behaviour
  • Has been addressing problems since arrest
  • Co-operation with authorities
  • Letter from defendant to court
  • Court processes stressful and/or long-running
  • Has lost job and reputation
  • Defendant represented himself well
  • Serious demeanour in court
  • Supportive attitude of victim

5. Defendant’s past

  • Good character or limited/irrelevant/gap in previous offending
  • Difficult/deprived background
  • Has led a productive/worthwhile life
  • Has shown a general improvement in behaviour
  • Offence uncharacteristic/’let yourself down’
  • Engaged well with previous community punishment


6.  Defendant’s present and future

  • Family responsibilities
  • Can address/is addressing drug problems
  • Unlikely to reoffend/cause harm (general point)
  • Prison will not benefit defendant and/or the public
  • Supportive family/partner
  • Currently in work/training or prospects of work/training
  • Can address/is addressing alcohol problems
  • Can or may make amends for offending behaviour
  • Is a capable person
  • Letters of recommendation
  • Age (older)
  • Physical illness/disability
  • Non-English speaking (therefore prison would be especially difficult)

7.  Proportionality and consistency

  • Need to avoid over-long custodial sentence
  • Consistency with co-defendants
  • Has effectively spent time on curfew order (on bail)
  • Has spent time in hospital since offence
  • Totality principle

 

 

Is loss of employment sufficient to prove exceptional hardship?

Loss of employment poses some difficulty for Justices and there is conflicting case law.

In a Scottish case, Brennan v McKay (1996) 1997 SLT 603, a taxi driver pleaded guilty to speeding and on a further three penalty points being imposed, was disqualified from driving for six months. The accused appealed contending that as taxi driver he would suffer exceptional hardship as he would likely lose his employment and be unable to obtain alternative work, and this would have a substantial effect on his family. It was held that it was not an invariable rule that exceptional hardship would only be established where persons other than the accused and his immediate family would suffer, the question being one of fact and degree; that it was necessary to demonstrate not only that the accused would lose his employment but also that there were other circumstances associated with loss of employment which might involve reflected hardship of a serious kind on the accused's business, his family or his long term prospects; that the justices were entitled to conclude that in the accused's case exceptional hardship had not been demonstrated.

In Owen v Jones [1988] RTR 102, the defendant was a serving police officer. It was submitted that if disqualified then he was likely to lose both his employment and his home. His solicitor asked the justices if they wished to hear evidence in relation to the submission, but they declined and found that the submission corresponded with their belief that the policy of the police authority concerned was to dismiss officers who were disqualified and the justices were of the opinion that the officer would, if disqualified, lose both his employment and home and that amounted to exceptional hardship. The prosecutor appealed. The appeal was dismissed and it was held that when considering the existence of exceptional hardship as being "mitigating circumstances" the justices were entitled to rely on their own knowledge so as to be able to say that they could dispense with evidence. However, Justices should not easily come to the conclusion that their belief is sufficient unless they are confident that it is well founded on a fact positively known to them from a past event. If justices do not have that confidence then it is incumbent to call for evidence from a defendant to establish that upon which he relies for the purpose of proving the exceptional hardship exists.

 

A defendant may give evidence that his occupation is driving, or his job entails driving, or he needs to drive to be able to get to work. The court must consider all the circumstances and can ask such questions as are reasonable. Some of the following may be relevant:

  • What is the impact/effect of the loss of employment?
  • How long has the offender had his job?
  • How far does the defendant travel to get to work?
  • Is public transport available?
  • Is there anyone else who can drive for the duration of the disqualification?
  • Can the defendant employ a driver?
  • If the defendant is an employer, is there anyone in the company who could drive for him, or take on the driving jobs?
  • What are the defendant's working hours/work pattern?
  • If the defendant loses his job, will anyone else be affected?
  • If the defendant loses his job, what is the likely effect on his long term prospects?
  • What skills/qualifications does the defendant have which might enable him/her to find alternative work?
  • Is the defendant the only wage earner in his household?

Guilty pleas and ancillary orders

Q: Does a guilty plea entitle an offender to a reduced disqualification period, or a reduced number of penalty points?

A: No.

The Sentencing Council Reduction in Sentence for a Guilty Plea: Definitive guideline states at paragraph 2.6;

"A reduction in sentence should only be applied to the punitive elements of a penalty. The guilty plea reduction has no impact on sentencing decisions in relation to ancillary orders, including orders of disqualification from driving."

In R v Needham [2016] EWCA Crim 455, Treacy LJ in considering the extended driving disqualification provisions referred to the aforementioned guideline and at paragraph 41 said;

There have been no submissions that that approach should be modified as a result of the introduction of the new sections. We consider that the existing guidance should continue to apply."