The question I am asked most frequently by my ‘totter’ clients is, ‘will the court disqualify me?’
Loss of driving licence is, for many of us, nothing short of a catastrophe. This point was brought home to me once when I received an email from a client informing me that if she were to be convicted that she would lose her job, that if she lost her job she would lose her home as she would not be able to afford her mortgage, and, that if she lost her home she would lose her custody application for her child. Clearly, the consequences of a driving disqualification can be severe and far reaching.
Although those committing offences resulting in the endorsement of 12 or more points on their driving licenses for offences committed within 3 years of each other are liable to be disqualified for a minimum period of 6 months this is by no means inevitable. There is a discretion within the court, in certain circumstances, to disqualify for a shorter period or not at all.
How to avoid a disqualification
The law allows a Defendant, or his advocate, to submit that ‘exceptional hardship’ would ensue were the Defendant to be disqualified. If the court finds this to be the case then there is a discretion either not to disqualify at all or to disqualify for a reduced period. Defendants should bear in mind that the onus of proving that ‘exceptional hardship’ would ensue is upon them; as it is a claim made by the defence to mitigate the penalty the burden of proving it is upon the defence. Defendants would be well advised to prepare documentary bundles for the court in support of their contentions as well as to be ready to give evidence on their own behalf. This could well involve being questioned by the court clerk or the prosecutor. Submissions and evidence should, therefore, be meticulously prepared.
What types of factor are likely to be taken into account?
The courts are mindful of the fact that for a Defendant to find herself in such a position she is something of a serial offender. Guidance from reported cases is to the effect that, for example, even loss of a job, on its own, may not amount to exceptional hardship. Why? Simply because many people are at risk of losing their jobs if they lose their licences. In other words, loss of job is not of itself necessarily to be regarded as an ‘exceptional’ hardship as many would suffer in such a way if they were to lose their licences. That is not to say that loss of job is not capable of being regarded as a relevant and important factor in such a case. Whether or not the court sees it as such is a matter of fact and degree. It is well established that the courts do pay more regard to hardship that would be suffered by innocent victims. So, for example, if an elderly mother were dependent on her Defendant son’s income to house her, but, that income would be lost if her son were to be disqualified, then that could, very probably, be regarded as a persuasive factor in determining whether exceptional hardship had been made out. Similarly, if a Defendant employed others who would lose their jobs if he were disqualified then this, too, could very likely be considered a weighty factor. Case law illustrates that the class of factors that can be taken into account ranges widely and is not closed. Each case turns on its own facts.
So, if you, an employee, or, someone you know is a ‘totter’ what should be done? First of all consider all the facts and background circumstances of the Defendant, and those dependent upon him, to establish if ‘exceptional hardship’ can or might be established. Meticulously prepare so that the Defence is in the best possible position to meet the onus of establishing that ‘exceptional hardship’ would be suffered. Finally, marshall one’s submissions to best effect to ensure they are put in the most persuasive manner possible. If one takes these steps this would tend to maximise one’s chances of a successful outcome without which the prospect of a 6 month ban becomes highly probable.
If you are at risk of a driving disqualification you are welcome to contact me for advice.
Sunil Rupasinha – Barrister at Law