"I am not a fan of the exceptional hardship rule, as some lawyers know how to play the system to their client's advantage rather than in the spirit the legislation was intended. It cannot be right that there are drivers on the road with 20+ points on their licence, who have committed multiple offences to get that far."
Those were my concluding remarks at the end of an earlier article on the topic of the totting up rule and exceptional hardship.
It might therefore come as a surprise that I was recently Presiding Justice of a bench that allowed a driver to retain their licence despite having accumulated 21 penalty points - a potentially headline-generating decision for certain media outlets.
Of course there were very good reasons for our decision, but those are often overlooked in the haste to condemn its apparent leniency.
The driver in question had a licence endorsed with 9 penalty points. Those points had been imposed in relation to two speeding offences (3 points each) and a defective tyre (3 points).
They stood before us having just admitted two section 172 offences, each attracting a further 6 penalty points.
Those offences, relating to their failure to notify the police who was driving the vehicle registered to them at the time of an alleged offence, had arisen because they had failed to notify the DVLA of a change of address.
This meant that when their vehicle was clocked speeding on a further two occasions, the relevant documentation was sent to their previous address at which the vehicle was still registered.
The police are only required to show good service of the relevant documentation to the address of the registered keeper, so the onus - in fact the legal obligation - is on the registered keeper to ensure that the DVLA is notified of any change of address.
Anyhow, this particular driver held their hands up and recognised they now had a bit of a problem under the totting up rule.
As discussed in our previous article, the court has the power not to impose disqualification under the totting up rule if it would result in exceptional hardship. The defendant was represented, so their solicitor now put forward such an argument.
The gist of the argument, suitably tweaked to preserve the anonymity of the case, was as follows: The driver lived with their disabled child who required regular hospital appointments. They have no family in the area and public transport is non-existent. They were the main earner of the household, with their non-driving partner staying at home to care for the young child. Should they lose their licence they would have to give up their well-paid, secure employment and look for something more local. They would also be unable to drive their child to hospital, which would cause the added stress and inconvenience of having to rely on ambulance transport instead.
Doesn't that put a different perspective on matters?
Even having heard that situation, it did not sit easy with us that the driver clearly had a bit of a habit of speeding. However, as their application was quite compelling - most significantly, highlighting the detriment disqualification would have on their disabled child - we agreed that the case for exceptional hardship was made out.
Addressing the defendant, I made it quite clear that they were only being allowed to keep their licence for the benefit of their child. They need to improve their standard of driving, because should there be any further offences the next bench may well take a totally different view.
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