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TOTTING UP / EXCEPTIONAL
HARDSHIP |
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One of the most common forms of disqualification imposed by the Courts in
Scotland relates to the accumulation of penalty points for repeat offences. Section 35 of
the Road Traffic Offenders Act 1988 requires where a person is convicted of an
offence involving endorsement and the number of penalty points to be taken into
account number twelve or more, the Court must order him to be disqualified for
the minimum period, namely six months if there is no previous disqualification
to be taken into account.
This minimum period is increased according to the number of applicable previous
disqualifications to be taken into account, one year if one, and two years if
more than one.
The Court can refrain from imposing a totting up disqualification or reduce the
minimum period if, 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 to not order him to be
disqualified.
This is typically referred to as exceptional hardship or mitigating
circumstances. It should be noted that the Road Traffic Offenders Act 1988
specifically excludes submissions based on circumstances that are alleged to
make the offence not a serious one, hardship, other than exceptional hardship,
and similar arguments that may have been presented to the Courts in the
preceding three years.
Exceptional hardship must be found in order to entitle the Court to disqualify
for less than the minimum period prescribed by law. Clearly, the more persuasive
the submission, the greater the reduction in the period of disqualification. For
the Court to refrain from imposing a disqualification, a strong and cogent
argument needs to be presented to the satisfaction of the Court.
A vast amount of legal authority has developed over the years and our specialist
knowledge of road traffic law in Scotland will maximise your prospects of successfully
persuading the Court to refrain from imposing a totting up disqualification. In
order to be persuasive, all submissions should have sufficient vouching and
witnesses should be called to give evidence in support of the defence argument.
Scotland
has always adopted a strict approach to interpreting the provisions relating to
exceptional hardship and our counterparts the other side of Hadrian’s Wall do appear to have adopted a rather more liberal
approach. Whilst the hardship that would ensue following a disqualification from
driving may feel exceptional, for example redundancy and loss of family home,
Courts in Scotland have always been more interested in third party hardship. That said, we are
aware that the current economic climate is a relevant consideration and the High
Court in Scotland have specifically ruled that the credit crunch and associated
difficulties are matters which can properly be considered within the realms of
exceptional hardship.
Michael Lyon Solicitors will ensure that your case is presented with direction and vigour
and our specialist knowledge of road traffic law in Scotland will give you the best possible chance of persuading the Court to decide in your
favour. |
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ml@theroadtrafficlawyer.com |
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