Exceptional Hardship

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?

Repeat offences and "exceptional hardship"

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.