Road traffic offences – disqualification

Note: The following guidance applies to offences with a 12 month minimum disqualification.

Some offences carry obligatory disqualification for a minimum of 12 months (Road Traffic Offenders Act (“RTOA”) 1988, s.34). The minimum period is automatically increased where there have been certain previous convictions or disqualifications.

An offender must be disqualified for at least two years if more than one disqualification of at least 56 days has been imposed on them in the three years preceding the commission of the offence (RTOA 1988, s.34(4)(b)). The following disqualifications are to be disregarded for the purposes of this provision:

• interim disqualification;
• disqualification where vehicle used for the purpose of crime;
• disqualification for stealing or taking a vehicle or going equipped to steal or take a vehicle.

An offender must be disqualified for at least three years if he or she is convicted of one of the following offences:

• driving or attempting to drive while unfit;
• driving or attempting to drive with excess alcohol;
• driving or attempting to drive with concentration of specified controlled drug above specified limit;
• failing to provide a specimen (drive/attempting to drive).

and has within the 10 years preceding the commission of the offence been convicted of any of those offences or causing death by careless driving when under the influence of drink or drugs (RTOA 1988, s.34(3)):

The individual offence guidelines indicate whether disqualification is mandatory for the offence and the applicable minimum period. Consult your legal adviser for further guidance.

Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.

The period of disqualification may be reduced or avoided if there are special reasons (Road Traffic Offenders Act 1988, s.34(1)). These must relate to the offence; circumstances peculiar to the offender cannot constitute special reasons (Whittal v Kirby [1946] 2 All ER 552 (CA)). The Court of Appeal (in R v Wickens (1958) 42 Cr App R 436 (CA)) has established that, to constitute a special reason, a matter must:

• be a mitigating or extenuating circumstance;
• not amount in law to a defence to the charge;
• be directly connected with the commission of the offence;
• be one which the court ought properly to take into consideration when imposing sentence.

Consult your legal adviser for further guidance on special reasons applications.

Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.

Incurring 12 or more penalty points means a minimum period of disqualification must be imposed (a ‘totting up disqualification’) – s.35 Road Traffic Offenders Act (RTOA) 1988. Points are not to be taken into account for offences committed more than three years before the commission of the current offence – s.29 RTOA 1988.

The minimum period is:

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

A previous disqualification is to be taken into account if it 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.

The court should first consider the circumstances of the offence, and determine whether the offence should attract a discretionary period of disqualification. But the court must note the statutory obligation to disqualify those repeat offenders who would, were penalty points imposed, be liable to the mandatory “totting” disqualification and, unless the court is of the view that the offence should be marked by a period of discretionary disqualification in excess of the minimum totting up disqualification period, the court should impose penalty points rather than discretionary disqualification so that the minimum totting up disqualification period applies.

In deciding whether there are grounds to reduce or avoid a totting up disqualification the court must not take into account:

(a)  any circumstances that are alleged to make the offence (or any of the offences whose penalty points are to be taken into account) not serious,

(b)  hardship, other than exceptional hardship, or

(c)  any circumstances which, within the three years immediately preceding the conviction, have been taken into account to reduce or avoid a totting up disqualification.

- s.35(4) RTOA 1988

When considering whether there are grounds to reduce or avoid a totting up disqualification the court should have regard to the following:

• It is for the offender to prove to the civil standard of proof that such grounds exist. Other than very exceptionally, this will require evidence from the offender, and where such evidence is given, it must be sworn.
• Where it is asserted that hardship would be caused, the court must be satisfied that it is not merely inconvenience, or hardship, but exceptional hardship for which the court must have evidence;
• Almost every disqualification entails hardship for the person disqualified and their immediate family. This is part of the deterrent objective of the provisions combined with the preventative effect of the order not to drive.
• If a motorist continues to offend after becoming aware of the risk to their licence of further penalty points, the court can take this circumstance into account.
• 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 be an inevitable consequence of a driving ban for many people. Evidence that loss of employment would follow from disqualification is not in itself sufficient to demonstrate 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. Useful information can be found in the Equal Treatment Bench Book (see in particular Chapter 11);

Where it finds that there are grounds for mitigating the ‘normal consequences of the conviction’, the court may consider whether this can be achieved by ordering a period of disqualification which is shorter than the statutory minimum or by ordering that the offender should not be disqualified at all.

Where the court does not find grounds for mitigating the normal consequences of the conviction then a period of disqualification of at least the statutory minimum must be imposed.

Consult your legal adviser for further guidance on minimum periods and applications for avoiding or reducing the minimum period.  

Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.

Whenever an offender is convicted of an endorsable offence or of taking a vehicle without consent, the court has a discretionary power to disqualify instead of imposing penalty points. The individual offence guidelines indicate whether the offence is endorsable and the number or range of penalty points it carries.

The number of variable points or the period of disqualification should reflect the seriousness of the offence. Some of the individual offence guidelines include penalty points and/or periods of disqualification in the sentence starting points and ranges; however, the court is not precluded from sentencing outside the range where the facts justify it. Where a disqualification is for less than 56 days, there are some differences in effect compared with disqualification for a longer period; in particular, the licence will automatically come back into effect at the end of the disqualification period (instead of requiring application by the driver) and the disqualification is not taken into account for the purpose of increasing subsequent obligatory periods of disqualification (Road Traffic Offenders Act 1988, ss.34(4), 35(2), 37(1A)).

In some cases in which the court is considering discretionary disqualification, the offender may already have sufficient penalty points on their licence that they would be liable to a ‘totting up’ disqualification if further points were imposed. In these circumstances, unless the court is of the view that the offence should be marked by a period of discretionary disqualification in excess of the minimum totting up disqualification period, the court should impose penalty points rather than discretionary disqualification so that the minimum totting up disqualification period applies (see ‘totting up’).

Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.

Where an offender is convicted of dangerous driving, the court must order disqualification until an extended driving test is passed.

The court has discretion to disqualify until a test is passed where an offender is convicted of any endorsable offence. Where disqualification is obligatory, the extended test applies. In other cases, it will be the ordinary test (Road Traffic Offenders Act 1988, s.36).

An offender disqualified as a ‘totter’ under the penalty points provisions may also be ordered to re­take a driving test; in this case, the extended test applies.

The discretion to order a re-test is likely to be exercised where there is evidence of inexperience, incompetence or infirmity, or the disqualification period is lengthy (that is, the offender is going to be ‘off the road’ for a considerable time).

Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.

Where an offender is disqualified for 12 months or more in respect of an alcohol-related driving offence, the court may order that the period of disqualification will be reduced if the offender satisfactorily completes an approved rehabilitation course (Road Traffic Offenders Act 1988, s.34A).

Before offering an offender the opportunity to attend a course, the court must be satisfied that an approved course is available and must inform the offender of the effect of the order, the fees that the offender is required to pay, and when he or she must pay them.

The court should also explain that the offender may be required to satisfy the Secretary of State that he or she does not have a drink problem and is fit to drive before the offender’s licence will be returned at the end of the disqualification period (Road Traffic Act 1988, s.94; Motor Vehicles (Driving Licences) Regulations 1999, reg. 74).

In general, a court should consider offering the opportunity to attend a course to all offenders convicted of a relevant offence for the first time. The court should be willing to consider offering an offender the opportunity to attend a second course where it considers there are good reasons. It will not usually be appropriate to give an offender the opportunity to attend a third course.

The reduction must be at least three months but cannot be more than one quarter of the total period of disqualification:

• a period of 12 months disqualification must be reduced to nine months;
• in other cases, a reduction of one week should be made for every month of the disqualification so that, for example, a disqualification of 24 months will be reduced by 24 weeks.

When it makes the order, the court must specify a date for completion of the course which is at least two months before the end of the reduced period of disqualification.

Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.

When considering disqualification in absence the starting point should be that disqualification in absence should be imposed if there is no reason to believe the defendant is not aware of the proceedings, and after the statutory notice has been served pursuant to section 11(4) of the Magistrates’ Courts Act 1980 where appropriate. Disqualification should not be imposed in absence where there is evidence that the defendant has an acceptable reason for not attending or where there are reasons to believe it would be contrary to the interests of justice to do so.

Drivers who incur six points or more during the two-year probationary period after passing the driving test will have their licence revoked automatically by the Secretary of State; they will be able to drive only after application for a provisional licence pending the passing of a further test (Road Traffic (New Drivers) Act 1995).

An offender liable for an endorsement which will cause the licence to be revoked under the new drivers’ provisions may ask the court to disqualify rather than impose points. This will avoid the requirement to take a further test. Generally, this would be inappropriate since it would circumvent the clear intention of Parliament.

For offences committed on or after 13 April 2015, where a court imposes a disqualification in addition to a custodial sentence or a detention and training order, the court must extend the disqualification period by one half of the custodial term imposed. Note: the extension of one-half of the custodial term applies even if the offender is liable to be released having served 40% of the custodial sentence.

This is to take into account the period the offender will spend in custody. This will avoid a driving ban expiring, or being significantly diminished, during the period the offender is in custody (s 30 Criminal Justice and Courts Act, 2015). Periods of time spent on remand or subject to an electronically monitored curfew are ignored.

Where a rehabilitation course is completed, any extension period is disregarded when reducing the ban.

For example where a court imposes a 6 month custodial sentence and a disqualification period of 12 months, the ban will be extended to 15 months. Where a rehabilitation course is completed, the reduction will remain at a maximum of 3 months.

Consult your legal adviser for assistance.