Exceptional Hardship and avoiding a disqualification under totting-up

If at first you don’t succeed…

We always take great care when preparing and presenting our exceptional hardship cases. It can be disappointing when short shrift has been given to our considered legal submissions however there is always recourse to the Sheriff Appeal Court in the event the court at first instance has erred.

The law in relation to exceptional hardship has developed over the years to the point where the general position is that the court at first instance is deemed to be in the best place to consider the evidence and that no hard and fast rules can be attached to what can (or indeed cannot) constitute exceptional hardship. To put it another way: each case turns on its own facts. As a consequence it can often be very difficult to overturn a decision however our recent case demonstrates that sometimes a decision is so perverse that the Sheriff Appeal Court really has no choice.

Whilst there are no hard and fast rules it has long since been established that a Justice cannot look behind unchallenged evidence and engage in speculation. The successful presentation of an exceptional hardship case often involves looking at suitable alternatives to driving, e.g. public transport, taxis, etc. and ensuring the court is aware that the spectre of disqualification has been properly considered by an accused and that alternative options have been investigated and simply do not exist.

In our case unchallenged evidence was placed before the court that a six month period of disqualification could have the following consequences:

  1. “Jobs might be lost”;
  2. “The survival of the business would be placed in serious jeopardy”;
  3. “Were the business to fail, the appellant and his wife would lose their livelihood and experience difficulty in meeting their mortgage commitments”;

The decision of the Sheriff Appeal Court was direct and to the point:

“It seems to us that the Justice’s conclusion, as is suggested in the note of appeal, was irreconcilable with the unchallenged evidence presented to the court to the effect that the business was unlikely to survive. The result would be a loss of employment not just for the appellant but for all ten of the staff of a small and specialised company which depended upon his expertise for its survival. Accordingly, we have determined that the existence of exceptional hardship ought to have been established and with that in mind we have quashed the disqualification of six months.”

We prefer to be successful at the first time of asking and would prefer not to have to seek recourse to the appeal court however this judgement is helpful for all the exceptional hardship cases to come and hopefully will serve as a reminder that it is improper to speculate and look behind unchallenged evidence in cases of this nature.

Full details of our recent case which has been reported can be found here: http://www.scotcourts.gov.uk/docs/default-source/sheriff-appeal-court-(criminal)/martin-waine-v-pf-glasgow.pdf?sfvrsn=2

Published: 29/05/2017

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