12 points on my licence: what happens next?
Many drivers, particularly those who travel large mileages every year, rack up penalty points on their licence. As the number of penalty points increase on a driver’s licence, this leads to increased insurance premiums but also a heightened risk of being disqualified from driving if there are unfortunate enough to accumulate 12 points.
Section 35(1) of the Road Traffic Offenders Act 1988 provides that:
(a)a person is convicted of an offence, and
(b)the penalty points to be taken into account on that occasion number twelve or more, the court must order him to be disqualified for not less than the minimum period unless the court is satisfied, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction and thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified."
This means if a driver accumulates 12 penalty points on their licence, they fall to be disqualified for a period of six months (or longer if there have been previous periods of relevant disqualification).
This is what is colloquially known as “totting”, or when a driver is referred to as a “totter”.
A significant point to note is that the relevant date is the time of the offence being dealt with by the Court, not the date when the driver appears in Court to have the points imposed. Consequently, if a driver is caught speeding at a time when he has nine points on his licence, it will not assist him if three of those points expire and are removed from his licence by the time he appears in Court. The Court considers the state of the driver’s licence on the date that the offence was committed.
Can I avoid being banned for six months?
There are two main ways a driver who reaches 12 points on their licence might be able to persuade a Court not to ban them for 6 months:
- To persuade the Court that “exceptional hardship” would be caused; or
- To persuade the Court to consider imposing a “discretionary disqualification” in place of penalty points.
Section 35(4) of the Road Traffic Offenders Act 1988 provides:
"No account is to be taken under subsection (1) above of any of the following circumstances—
(a) any circumstances that are alleged to make the offence or any of the offences not a serious one,
(b) hardship, other than exceptional hardship, or
(c) any circumstances which, within the three years immediately preceding the conviction, have been taken into account under that subsection in ordering the offender to be disqualified for a shorter period or not ordering him to be disqualified."
The statute makes it clear that “hardship” caused to the driver facing a disqualification should not be considered by the Court, but “exceptional hardship” may be.
The meaning of “exceptional hardship” rather peculiarly comes from the Matrimonial Causes Act 1973 and caselaw arising from a family law case. In the case of Fay v Fay  2 All ER 922, it was held that exceptional hardship is something “out of the ordinary”. Further guidance is drawn from the case of Cornwall v Coke  Crim LR 519 in which it is indicated that the Court will be concerned with hardship caused to the public, the offender’s employer, employees or family. The rationale for this is that the Court is concerned for parties who are wholly innocent but will suffer because of the offender’s inability to drive.
To summarise therefore, a driver who wishes to raise an exceptional hardship argument with the Court will need to demonstrate that hardship will be caused to other people around him, not simply to himself.
Examples of potential exceptional hardship arguments are as follows:-
- In the case of Allan v Barclay 1986 S.C.C.R. 111, exceptional hardship was found in the case of a driver who was the main breadwinner for his family. By being banned, it would cause him to lose his livelihood and in turn his ability to keep up with mortgage payments and provide for his dependents.
- In Waine v PF  SAC (Crim), the defendant ran a business employing 10 members of staff. His driving licence was central to the profitable running of the business and so a number of employees would lose their job if he was banned for six months. It was on this basis that the Court found exceptional hardship.
The burden of proof in exceptional hardship arguments lies with the driver and he has to establish his case on the balance of probabilities. It is often necessary to obtain and collate supporting documentary evidence, particularly when finances are affected. It will also be necessary to obtain written evidence from individuals who will be affected by a potential ban. Therefore preparing for and presenting exceptional hardship arguments in Court often needs specialist legal representation.
Drivers become “totters” through accumulating penalty points on their licence. In certain circumstances, it is possible to persuade a Court to impose a discretionary disqualification in place of penalty points, and thereby avoid a driver amassing 12 points.
Obviously a driving disqualification, however short, is not a desirable outcome but it can be the lesser of two evils, particularly if the driver facing the totting disqualification does not have surrounding circumstances giving rise to a potential exceptional hardship argument.
A discretionary disqualification is likely to be between seven and 56 days.
Section 34(2) of the Road Traffic Offenders Act 1988 provides that:
Where a person is convicted of an offence involving discretionary disqualification, and either—
(a)the penalty points to be taken into account on that occasion number fewer than twelve, or
(b)the offence is not one involving obligatory endorsement, the court may order him to be disqualified for such period as the court thinks fit.
It is not always an easy task persuading a Court to impose a discretionary in place of penalty points, as it sometimes seems like the soft option for an offender. However, guidance is provided in Jones v DPP  RTR 8. In this case, it is suggested that a Court, when faced with deciding between a totting disqualification and a discretionary disqualification, should first consider exercising its power to impose a discretionary disqualification in light of the driver’s whole record. When dealing with more serious offences, the Court may opt to disqualify the driver for six months under the totting provisions.
Submissions to a Court requesting it to exercise its discretion under this provision must be formulated carefully and presented tactfully. If a discretionary disqualification is imposed any penalty points which have not expired will remain on the driver’s license.
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Articles are intended as an introduction to the topic and do not constitute legal advice.