The Magistrates Association has published this guidance regarding "exceptional hardship":
1) Under section 35 of the Road Traffic Offenders Act 1988, drivers who accumulate 12 or more penalty points within any 3 year period are liable to a mandatory disqualification for a minimum period of 6 months. The measure is an important part of the Government's road safety agenda and is intended to act as a powerful deterrent to motorists who continue to commit road traffic offences despite previous endorsements.
2) The legislation only allows Magistrates not to disqualify, or to disqualifyfor less than 6 months, if the Court is satisfied, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction. The most common mitigating circumstance put forward is the potential effect of the disqualification on the offender, namely that hardship would result.
3) Section 35(4) (b) of the RTOA 1988 precludes the Court from taking into account "hardship, other than exceptional hardship". Prior to the 1988 Act, section 93(3) of the Road Traffic Act 1972 operated to impose a totting-up ban for any 3 offences within a 3 year period. The 1988 Act, in allowing four 3 penalty point offences before totting up comes into effect, gives a further chance to the repeat minor offender. However, parliament sought in the 1988 Act to restrict the ability of the offender to advance hardship arguments substituting the term "exceptional hardship" for the pre-existing criterion of "undue hardship".
4) There is no strict definition of the term "exceptional hardship", it being amatter of fact and degree to be decided in each individual case. However the following notes are intended as guidance to assist magistrates in achieving a consistent approach:
i) Almost every disqualification entails hardship for the person disqualified. In essence, this is part of the deterrent objective of the provisions combined with the preventative effect of the order not to drive.
ii) If a motorist continues to offend after becoming aware of the risk to his licence of further penalty points, the court will be far less inclinedto find exceptional hardship where he is the only person to suffer as a result of a ban.
iii) Loss of employment will be an inevitable consequence of a driving ban for many people nowadays. It is submitted that loss of job, by itself, is unlikely to satisfy the "exceptional" test.
iv) Some judicial guidance can be found in the Scottish case of Brennan v McKay (1996) 1997 S.L.T. 603. A taxi-driver reached 12 penalty points on being convicted of speeding. He claimed that he would be likely to lose his job and be unable to obtain other work, and this would have a substantial effect on his family. The High Court of Judiciary held that the justices were entitled to conclude that exceptional hardship had not been demonstrated.
v) Whilst 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, it was necessary to demonstrate 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; per Lord Hope in Brennan v. McKay.
5) Offenders may not put forward the same circumstances which have been used either for not disqualifying or for reducing the length of the totting up disqualification within 3 years of the conviction; s. 35(4)(c) RTOA 1988. It is therefore important for the Court to make a full record of the precise circumstances which justified any finding of exceptional hardship.