Exceptionally Hard Decisions: A Case Study

There is an opinion in certain quarters that the Magistrates' Court only deals with minor offences and consequently doesn't have much "bite" when it comes to sentencing.

Everyday in Magistrates' Courts across the land Justices and District Judges are making decisions that can have very serious ramifications for a person's liberty, livelihood, family and reputation.

One such case came before the court recently. As usual, although I am tweaking some details to preserve the anonymity of the parties involved, the essence of the case remains.

Mr Grey was up before the court charged with failing to stop and report an accident (two separate offences, but for convenience I shall refer to as one offence only) and driving without insurance.

He admitted the offences on the basis outlined by the prosecution, the gist of which was that he had lost control of the vehicle, causing it to mount the kerb, flip over and demolish a lamp post, garden wall and bus shelter. Instead of reporting the accident and waiting for the police, Mr Grey disappeared from the scene.

The incident happened in the early hours of the morning and there is little doubt that attending police officers would have breathalysed Mr Grey at the scene had he been there.

The car Mr Grey had been driving did not belong to him. It belonged to a friend who was away on holiday at the time. Although Mr Grey had permission to drive the car, his friend made it absolutely clear that he could only do so if he arranged suitable insurance cover. Mr Grey had failed to make such arrangements, so was therefore uninsured to drive.

Mr Grey left the scene of the incident - a scene that was described as carnage by the prosecutor. A scene where several thousand pounds worth of damage had been done not only to the car, but also to the brick wall and street furniture. A scene left strewn with broken bricks, shattered glass and bent pieces of metal. It took several hours for the council to clean up the mess, make the area safe and reopen the road. A lot of inconvenience was caused to the residents of the street, who were rudely woken from their slumber and penned in their driveways.

It took the police a couple of days to identify Mr Grey as the driver and pay him a visit. In the meantime Mr Grey had sought medical attention and somehow got himself home, but he said he couldn't remember how he had achieved either of those feats. His memory of events was hazy (although there was no medical evidence to support any loss of memory and it wasn't a point laboured in mitigation), but he thinks he swerved to avoid a cat.

In mitigation Mr Grey's solicitor, Miss Brown, described his personal circumstances - that driving was an essential component of his job; that he had carer responsibilities that relied heavily on his ability to drive. If he lost his licence, which was the probable outcome, then he would undoubtedly lose his job and his family would suffer real hardship.

Having heard the circumstances we were in little doubt that the substantive offence - the failing to stop or report an accident - was one involving higher culpability and greater harm. This placed it firmly in Category 1 of the relevant sentencing guideline. Given that the sentence range included the custody and community bands, we asked for a pre-sentence report.

Of significance was the fact that Mr Grey already had 6 penalty points on his licence, which had been imposed as a result of two speeding offences. Other than that he was a man of previous good character.

Setting aside the main sentence for one moment, we had a choice to make in terms of ancillary orders. We could either impose a discretionary disqualification of 6 to 12 months; or we could endorse his licence with 9 to 10 penalty points instead. Such a decision is entirely a matter for the court, given the circumstances before it. Given that Mr Grey already had 6 points on his licence, the consequence of imposing more points would have been disqualification for a minimum of 6 months under the totting up rule.

Miss Brown was keen for us to impose the penalty points, so that she could then make an exceptional hardship application. She did this in the hope that her client might avoid a totting up disqualification. Even if a totting disqualification was upheld, its duration was likely to be shorter than any discretionary disqualification imposed. In her mitigation earlier, Miss Brown had already sewn the seeds of what Mr Grey's exceptional hardship argument would be. Unusually, there was time available for us to consider an exceptional hardship application there and then.

If we imposed the points, there was a chance Mr Grey might drive away from the court having succeeded in his exceptional hardship application. If, on the other hand, we went down the route of discretionary disqualification, then Mr Grey would have been taking the bus home instead.

But by giving the penalty points we would effectively be giving Mr Grey a second bite of the cake - a second chance to convince us, on the balance of probabilities, that he shouldn't be disqualified. A driver with a clean licence in the same situation would not need to worry about totting up, so they wouldn't be offered a second bite of the cake. How could that be just and fair? There was also a feeling that a totting disqualification, imposed almost as an aside to the substantive offence, was not reflective of the seriousness of the circumstances before us.

So what was it to be? The penalty points or the discretionary disqualification? This was a very difficult decision to make. One of the most difficult and time-consuming decisions I have ever played a part in. Having heard Mr Grey's circumstances, which were far more complicated than summarised earlier, of course we didn't want him to lose his job and his family to face hardship as a result. It is never good for a person to lose the security and stability of employment, particularly one of previous good character.

However, the substantive offence was very serious with many aggravating features. But by the grace of God, no-one was killed or seriously injured. Given Mr Grey's job, he knew fine well the rules of the road. He knew he was not insured to drive that night. He knew the accident had to be reported to the police. We knew he was a man who drove at excessive speed, so was that the real reason he lost control? Was his lack of insurance the reason he didn't hang around for the police?

Given the severity of the offence, and notwithstanding the employment and family consequences for Mr Grey, we decided that it had to be marked by a 9 month discretionary disqualification instead of penalty points.

As for the final sentence, we decided that a 12 month community order with a 6 month curfew requirement would be appropriate.

No separate penalty was imposed for driving without insurance.