Extension of driving disqualification


Sections 35A and 35B of the Road Traffic Offenders Act 1988 require the Court to impose an extension in the length of the period of a driving disqualification imposed under sections 34 or 35 of the RTOA where a custodial sentence is also imposed (Archbold 32-270). The relevant provisions do not apply to offences committed wholly or partly before 13th April 2015; see Coroners and Justice Act 2009 (Commencement No.17) article 2 and paragraphs 29 to 34 of Schedule 22 of the Coroners and Justice Act 2009.  

On 7th April 2016, a specially convened Court (Treacy LJ, Jeremy Baker J and the Recorder of Cardiff) heard seven otherwise unrelated cases to consider ss.35A and 35B - in particular how the provisions operate when multiple custodial sentences are imposed, the interrelationship between the provisions, the effect of remand time/qualifying curfew and whether it ought to be taken into account in setting the period of disqualification, the commencement and transitional provisions and pronouncement of sentence when the provisions are engaged; see R v Needham and others [2016] EWCA 455.

At paragraph 17, the Court made reference to the general purposes of disqualification - which were expressed in a case in which I appeared;  R v Backhouse and others [2010] EWCA Crim 1111:

"An order of disqualification has the purpose of protecting the public … disqualification is also intended to punish and deter offenders and others. A balance, however, has to be struck and the court should not disqualify for a period that is longer than necessary and should bear in mind the effects of a ban on employment or employment prospects."

The extended disqualification provisions apply where a court in England and Wales sentences an individual to an immediate custodial sentence as well as ordering the individual to be disqualified for holding or obtaining a licence. In that case the court must add an extension period to the disqualification period to take into account the time spent in custody. 

 The provisions bring into force section 137 and schedule 16  of the Coroners and Justice Act 2009. A new section 35A of the Road Traffic Offenders Act 1988 applies where there is an obligatory or discretionary disqualification (section 34) or 'totting up' disqualification (section 35). The disqualification order must provide for the person to be disqualified for the appropriate extension period.

Where a life sentence or an indeterminate sentence for public protection sentence is imposed the extension period is the period of the minimum tariff set by the court. Where an extended sentence is imposed the extension period is half the custodial term, that is, the period of the sentence to be served in prison. Where a detention and training order is imposed, the extension period is half the term of the order. In all other cases, the extension period is equal to one half of the custodial sentence (at which point the offender is subject to automatic release or, for sentences of 12 months or more, released on licence in the community until the end of sentence).

New section 35A(4) and (5) ensure that the appropriate extension period is reduced to reflect any reduction in the custodial sentence as a result of the court taking into account time already served on remand, or credits periods of remand on bail in a case where the offender was subject to a curfew condition which was electronically monitored.

Under new section 35A(6) the extension of disqualification does not apply where the court imposes a suspended sentence or where a life sentence to which no early release provisions apply (cases where the offender must spend the rest of his life in prison).

New sections 35A(7) and (8) provide for an order-making power to amend the extension period where an amending order is made under section 267 of the 2003 Act to change the proportion of time to be served in custody in relation to a standard determinate sentence, or the appropriate custodial term of an extended sentence.  


Is driving whilst using a smart watch an offence?

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.

For the purposes of the regulation, a mobile telephone or other device is to be treated as hand-held if it is or must be held at some point during the course of making or receiving a call or performing any other interactive communication function.

If the watch is not hand-held then the mobile phone legislation is not applicable. However, there are other offences which may apply:

  • Dangerous driving
  • Careless driving
  • Not in proper control 

Absent unusual facts, 'not in proper control' is the most likely candidate and carries the same penalty as the specific mobile phone legislation; see section 41D Road Traffic Act 1988.