Proposals to provide more guidance to courts in England and Wales for sentencing drivers who claim exceptional hardship when facing disqualification were launched today in a public consultation by the Sentencing Council.

The proposals, which follow requests for more guidance from magistrates, also include minor changes to sentencing guidelines for driving while disqualified and breach of a community order.

The changes relate chiefly to sentencing in magistrates’ courts but may also affect sentencing in the Crown Court for breach of a community order. In addition, there are proposed clarifications to the explanatory materials provided to assist magistrates in sentencing.

The proposed new guidance covers ‘totting up’ disqualifications, which are imposed when an offender incurs 12 or more points on their licence. Drivers can avoid disqualification if they successfully claim that not being able to drive would lead to “exceptional hardship”.

The new guidance sets out clearly what the courts should have regard to when considering whether there are grounds to reduce or avoid a disqualification due to exceptional hardship:

• The test is not inconvenience or hardship, but exceptional hardship for which the court must have evidence – which may include the offender’s sworn evidence.
• Some hardship is likely to occur in many if not most orders of disqualification.
• Courts should be cautious before accepting assertions of exceptional hardship without evidence that alternatives (including alternative means of transport) for avoiding exceptional hardship are not viable.
• Loss of employment will not in itself necessarily amount to exceptional hardship; whether or not it does will depend on the circumstances of the offender and the consequences of that loss of employment on the offender and/or others.
• The more severe the hardship suffered by the offender and/or others as a result of the disqualification, the more likely it is to be exceptional.

Sentencing Council Chairman Lord Justice Holroyde said:

“Sentencing guidelines are used in magistrates’ courts throughout England and Wales on a daily basis and it is important that they provide clear guidance to court users.

“This consultation is in response to requests from magistrates for changes to provide more information and bring greater clarity to these guidelines. We are keen to hear views on the proposals from magistrates, others working in the criminal justice system and anyone else with an interest in sentencing.”

The consultation also includes proposals to:

• Clarify the guideline for driving while disqualified to make it clear that an existing disqualification period should be added to any new disqualification period imposed by the court so that both are served in full.
• Amend the guideline for sentencing offenders who have breached a community order, to make it clear that the order can be extended to allow time for completion of extra requirements (such as unpaid work) but not as a standalone punishment.
• Clarify that the order of priority for financial penalties is: compensation, surcharge, fine and lastly costs where an offender has insufficient resources to pay them all.

The consultation runs for 12 weeks from 22 January to 15 April 2020 and can be accessed via the Council’s website: /

Notes to editors

1. ‘Totting up’ disqualifications are imposed when an offender incurs 12 or more points on their licence. Disqualification can be avoided or reduced in certain circumstances and the guidance being consulted on seeks to provide guidance to courts on when that may apply.
2. Disqualification for a minimum period must be ordered if an offender incurs 12 or more penalty points within a three-year period – s.35 Road Traffic Offenders Act (RTOA) 1988.
3. The minimum period is:

• six months if no previous disqualification is to be taken into account
• one year if one “relevant period of disqualification” is to be taken into account
• two years if more than one “relevant period of disqualification” is to be taken into account.

4. A “relevant period of disqualification” is one which is:

• not less than 56 days; and
• imposed within the three years immediately preceding the date on which the current offence (or most recent of the current offences) was committed.

5. The court must order the offender 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. (s.35(1) RTOA 1988)
6. Where a ‘totting up’ disqualification is imposed, it erases all penalty points.
7. Sentencing guidelines must be followed, unless the court is satisfied that it would be contrary to the interest of justice to do so. If a judge or magistrate believes that a guideline prevents the correct sentence from being given in an exceptional case, he or she can sentence outside of the guideline.
8. The Sentencing Council was established by Parliament to be an independent body, but accountable to Parliament for its work which is scrutinised by the Justice Select Committee. Justice Ministers are accountable to Parliament for the Sentencing Council’s effectiveness and efficiency, for its use of public funds and for protecting its independence. Judicial Council members are appointed by the Lord Chief Justice with the agreement of the Lord Chancellor. Non-judicial council members are appointed by the Lord Chancellor with the agreement of the Lord Chief Justice.

For more information, please contact Kathryn Montague, Sentencing Council Press Office, on 020 7071 5792 / 5788 / 07912301657
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