Successful: Exceptional Hardship Argument - Willesden Magistrates Court
We recently represented a 79-year-old client who appeared before Willesden Magistrates’ Court for two speeding offences. Our client was caught driving over the 20 mph speed limit and pleaded guilty to both offences at the first opportunity.
Ordinarily, each offence would attract a fine and three penalty points. However, our client already had six penalty points on his licence. A further six points would have brought him to the 12-point threshold, making him liable for a minimum six-month disqualification under the totting-up provisions.
The Law
Section 35 of the Road Traffic Offenders Act 1988 provides that, in cases where a person has been convicted of an offence involving obligatory or discretionary disqualification, and the penalty points to be taken into account number 12 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."
Section 35 (4) provides that none of the following circumstances should be allowed to be taken into account:
- any that are alleged to make the offence or any of the offences not a serious one;
- hardship, other than exceptional hardship; and
- any circumstances taken into account by a court when the offender escaped disqualification or was disqualified for less than the minimum period on a previous occasion within the three years preceding the current conviction.
The court can therefore consider all the circumstances, save that no account is to be taken of the matters in s.35(4), which include "hardship, other than exceptional hardship."
By analogy with "exceptional hardship" in the context of the Matrimonial Causes Act 1973, exceptional hardship involves "something out of the ordinary."
The onus of proof of establishing mitigating circumstances is on the defendant. The standard of proof is the balance of probabilities (i.e. it is more probable than not).
We therefore made a detailed exceptional hardship application, supported by witness statements, inviting the court to exercise its discretion not to impose a ban. We submitted that disqualification would cause serious hardship not only to our client, but particularly to his wife, for whom he is the sole carer and driver. The family had suffered the recent loss of their daughter, and both our client and his wife had experienced significant health and financial challenges as a result.
Due to their age, medical needs, and limited means, using public transport was not a realistic alternative. Our client also explained that he now drives only short distances for essential purposes following his recent retirement.
The court carefully considered the evidence and submissions and accepted that our client would suffer exceptional hardship and while the penalty points were endorsed, the court exercised its discretion not to impose a disqualification.
This outcome allowed our client to continue supporting his wife and family at a difficult time and avoided the serious impact a ban would have had.
If you or someone you know is in a similar situation, our experienced team is here to assist with the preparation and presentation of exceptional hardship arguments, ensuring that no stone is left unturned.