Driving disqualification - for consultation only

1. Availability

General powers to order a driving disqualification

Under section 163 of the Sentencing Code, any court may impose a driving disqualification for any offence committed after 1 January 1998. This is a broad power, but it cannot be used arbitrarily. It must serve one or more of the statutory purposes of sentencing, and it should generally be reserved for cases which have involved the offender driving a vehicle or otherwise using a vehicle to commit the offence for which he or she is being sentenced.

In addition, the Crown Court has a specific power under section 164 of the Code to impose a driving disqualification for offences which carry a maximum penalty of two years’ imprisonment or more (plus assault cases involving vehicles), where a vehicle was used for the purpose of committing, or facilitating the commission of, the offence.  

Schedule 2 to the Road Traffic Offenders Act 1988 sets out the motoring offences for which disqualification is discretionary or mandatory under section 34 of the Road Traffic Act 1988, and where offences are endorsable with penalty points. Where Schedule 2 does not say that disqualification is either discretionary or mandatory, the Court may still disqualify under its general section 163 powers, where this is appropriate.

The principles in Part 2 which apply to setting the length of a disqualification may also be relevant to consider whether to impose any of these types of disqualification.

Discretionary disqualification

Some offences carry a discretionary power to order a disqualification, including aggravated vehicle taking offences under section 12A of the Theft Act 1968, and motoring offences where penalty points can be imposed (Road Traffic Offenders Act 1988, section 34(2)).

In these cases there is no minimum period of disqualification. Where the court is minded to impose a disqualification it may impose one of such length as it sees fit, following the principles set out in Part 2 of this guideline. The court should warn the offender that it is considering disqualification so they are given the opportunity to address the issue before an order is made.

Note: 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 (see “Totting up” section, below). In these circumstances, unless the court is of the view that the offence should be marked by a period of discretionary disqualification greater than 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.

Mandatory disqualification

Some motoring offences carry mandatory disqualification, as set out in Schedule 2 to the Road Traffic Offenders Act 1988.

Minimum periods

The usual minimum period for an offence with mandatory disqualification is 12 months. However, that period is higher for some offences.

Table 1

Notes:

The minimum period is automatically increased where there have been certain previous convictions or disqualifications.

1) If an offender is convicted of an offence of causing death by careless driving when under the influence of drink or drugs (section 3A of the Road Traffic Act 1988), having been convicted of the same offence within the 10 years preceding its commission, the minimum disqualification period is six years.

2) An offender must be disqualified for at least two years if two or more disqualifications of at least 56 days have been imposed on them in the three years preceding the commission of the offence. 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.

3) There are further provisions for repeat drink and drug driving convictions. 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.

“Totting up”

Incurring 12 or more penalty points means a minimum period of disqualification must be imposed. This is called a ‘totting up disqualification’ (see section 35 of the Road Traffic Offenders Act 1988).

Note: the court should first consider the circumstances of the offence, and determine whether the offence should attract a discretionary period of disqualification (see “discretionary disqualification” above). But unless the court is of the view that the offence should be marked by a period of discretionary disqualification longer than 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.

Points are not to be taken into account for offences committed more than three years before the commission of the current offence.

The minimum period for a totting up disqualification is as follows:

Table 2

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

• at least 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.

New drivers

Drivers who incur six points or more for offences committed 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 (see the Road Traffic (New Drivers) Act 1995).

Note: 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. Generally, this would be inappropriate: the court should impose penalty points rather than discretionary disqualification so that the requirement to take a further test applies.

2. Determining the length of disqualification

As set out in Part 1, some motoring offences carry minimum disqualification periods, but the court should consider what length of disqualification may be appropriate depending on the offence, the offender and the need to protect the public from harm.

Principles

When setting the length of a disqualification the court must have regard to the purposes of sentencing in section 57 of the Sentencing Code, which include: the punishment of offenders, the protection of the public, the reduction of crime, and the reform and rehabilitation of offenders.

Sentencers should consider the following questions, when considering the length of a disqualification over and above any applicable minimum and any period spent in custody:

• How bad was any driving concerned in the present offence?
• Does the offender have a history of poor driving, driving unlicensed, or breaching disqualifications?
• Will the public be at risk of harm from the offender’s driving in future?
• Will the disqualification period provide a sufficient deterrent to the offender, helping to ensure their future driving is of an acceptable standard?
• How will the disqualification affect the offender’s prospects for rehabilitation (with particular regard to employment, training, and family responsibilities)?
• What will the impact be on third parties (including children and dependent family members) for the duration of the disqualification?
• What is the aggregate period that the offender will be prevented from driving, bearing in mind any period spent in custody?
• Standing back, is the disqualification fair and proportionate, considering the culpability of the offender and the harm done?

Sentencers should consider how a disqualification interacts with other parts of an offender’s sentence. For example, where an offender is serving a community sentence or paying a fine, a longer disqualification may form a greater element of the punitive element of the sentence. Where an offender will spend a long time in custody the disqualification period after release may represent a continued means of public protection, potentially even after the custodial sentence (including the licence period) has been served. However, the court will need to consider all the circumstances of the offender and the offence before it.

Sentencers must explain the reasons for the duration of the disqualification period.

Lengthy disqualifications, including life disqualification

There is nothing in principle preventing the courts from imposing lengthy disqualifications of several years on offenders, where this is proportionate and can be justified by the need for punishment and public protection.

Lifetime disqualifications will be rare, in particular because of the increased risk of breach and the possibility of hindering rehabilitation prospects. Lifetime disqualifications will generally be inappropriate unless there is:

• psychiatric evidence and/or
• evidence of many previous convictions

indicating that the offender would be a danger to the public indefinitely if allowed to drive.

Disqualification until a test is passed

Where an offender is convicted of any offence involving dangerous driving, causing death or serious injury by driving whilst disqualified, or causing death by careless driving whilst under the influence of drink or drugs, the court must order disqualification until an extended driving test is passed.

The extended retest costs the offender double the amount of the standard practical test. It contains the same elements as the ordinary practical test, but will always be more than 60 minutes in duration, and will always include an emergency stop exercise and driving on roads where the national speed limit applies.

The court may also disqualify until an extended test is passed where an offender is convicted of any offence where disqualification is mandatory or where an offender receives a “totting up” disqualification. In other cases where an offender has been convicted of an endorsable offence, the court may order the offender to be disqualified until the ordinary test is passed. In these cases the court must have regard to the safety of road users in deciding whether to make such an order.

Where there is discretion to order a re-test (whether extended or ordinary), the court may wish to do so where there is evidence of inexperience, incompetence or infirmity, or the disqualification period (with or without a period in custody) is lengthy, meaning the offender is going to be ‘off the road’ for a considerable time.

Interaction with custodial period

Custody imposed for the same offence

Where a court imposes a disqualification in addition to an immediate custodial sentence or a detention and training order in relation either to a road traffic offence (under either section 34 or 35 of the RTA) or section 163 or 164 of the Sentencing Code it must extend the disqualification period to take account of the custodial term as follows:

Table 3

This will avoid the disqualification expiring, or being significantly diminished, during the period the offender is in custody. No extension period should be imposed where a sentence is suspended.

Periods of time spent on remand or subject to an electronically monitored curfew are generally ignored. However, If the time spent on remand would lead to a disproportionate result in terms of the period of disqualification, then the court may consider setting the discretionary element (i.e. the period which would have been imposed but for the need to extend for time spent in custody) to take account of time spent on remand. This should not reduce the discretionary term below the statutory minimum period of disqualification.

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

All elements of the disqualification should be clearly explained.

Custody imposed for a different offence

The Court may be imposing a custodial sentence on the offender for another offence, which is not the one for which they are being disqualified or the offender may already be serving a custodial sentence for another offence. In either of these circumstances, the Court should have regard to “the diminished effect of disqualification as a distinct punishment if the person who is disqualified is also detained in pursuance of a custodial sentence” (see section 35B of the Road Traffic Offenders Act 1988).

All elements of the disqualification should be clearly explained.

Where the court is intending to impose a disqualification and considering a custodial sentence for that and/or another offence, the court should follow the following process:

3. Exceptions

Mandatory disqualifications – special reasons

The circumstances where special reasons can be relied upon to avoid mandatory disqualification or impose a disqualification shorter than the statutory minimum (under section 34(1) of the Road Traffic Offenders Act 1988) are very limited. In those cases where special reasons are relied upon, they must relate to the offence; circumstances peculiar to the offender cannot constitute special reasons. 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.

Where the court does not impose a disqualification or imposes a disqualification shorter than the minimum period due to special reasons, it must explain why it has done so.

Totting up – grounds for mitigation

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

1. 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,
2. hardship, other than exceptional hardship, or
3. any circumstances which, within the three years immediately preceding the conviction, have been taken into account to reduce or avoid a totting up disqualification.

(see section 35(4) of the Road Traffic Offenders Act 1988)

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.

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. The court must be satisfied that it is not merely inconvenience, or hardship, but exceptional hardship, for which the court must have evidence. 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 truly 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 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.

Where the court does not impose a totting up disqualification or imposes a disqualification shorter than the minimum period, it must explain why it has done so.

4. Administration of a disqualification

Disqualifying in an offender’s absence

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.

Disqualifications of 56 days or more

Where a disqualification of 56 days or more is imposed on an offender, they must apply to the DVLA for a new licence in order to be able to drive. The offender’s existing licence must be returned to the DVLA.

Where a disqualification is for 55 days or less, 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 (see Part 1 above).

High risk drivers’ scheme

An offender who:

• has been disqualified where the level of alcohol was a least 87.5 μg in breath, 200 mg in blood or 267.5 mg in urine, or
• has been disqualified for failure to provide a specimen, or
• has been disqualified on two or more occasions within any period of 10 years for driving with excess alcohol or being unfit to drive

is classed as a high risk offender. In these cases the offender must satisfy the DVLA that they are medically fit to drive again. They will need to complete, and pay for, a medical assessment including blood tests.

Reduced period for rehabilitation course

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.

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 (see section 94 of the Road Traffic Act 1988 and Regulation 74 of the Motor Vehicles (Driving Licences) Regulations 1999).

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.

The Sentencing Council’s Drink Drive Calculator may assist sentencers in calculating the effect of a drink drive disqualification, any related custodial sentence, and a reduced period for participation in a course.