Road Traffic Offenders Act 1988, Section 42
If you are already subject to a disqualification from holding or obtaining a driving licence, it may be possible to apply to the Court to seek to have the ban lifted early.
The key time limits for such an application are as follows:
(a) After two years, if the disqualification is for less than four years;
(b) One half of the period of the disqualification, if it is for less than ten years but not less than four years;
(c) Five years in any other case;
It should be noted that there is no power to remove a disqualification under Section 36 of the Road Traffic Offenders Act 1988, i.e. a disqualification until a driving test is passed.
The application takes the form of a petition to the original Court where the case was initially heard. Where possible, the petition should be considered by the particular judge who imposed the initial disqualification. If the Sheriff who imposed the ban has since retired or is no longer sitting, then it is perfectly competent for a different Sheriff to hear the petition.
On the assumption the application satisfies the time-limit criteria, the starting point for the petition is a detailed consideration of the reasons why an applicant should have the disqualification removed. We are always keen to stress that the length of disqualification originally imposed by the Court represents the period of time that the Sheriff intended to put an accused off the road. The basis of the application is not an appeal against sentence.
Discounts for early pleas and referrals to rehabilitation courses will have all previously been considered at the original point of sentence. It cannot and should not be argued that the original disqualification was excessive.
In certain circumstances an applicant may be serving an enhanced minimum disqualification for repeat offences. The most common example is where an accused is convicted of a second drink driving offence within a ten year period. It is worth noting that, whilst the minimum period prescribed by law in these circumstances is indeed three years, an application to remove the disqualification early by virtue of the provisions of Section 42 of the Road Traffic Offenders Act 1988 remains to be perfectly competent, i.e. after two years of the original disqualification have elapsed.
Probably the most relevant consideration, in our view, is whether the petitioner has been of good behaviour during the currency of the disqualification. It is unlikely a Sheriff will favourably consider an application where the accused has been involved in further offending. The application becomes very easy to refuse in these circumstances and we would counsel against pursuing a case unless the offence involved is extremely minor or where there are extenuating circumstances surrounding the matter.
The restoration hearing normally involves legal submissions made by the Crown and Defence. The involvement of the Crown is often limited to simply drawing the Sheriff’s attention to the terms of the Police Report. Thereafter the Sheriff can invite submissions from the petitioner or his legal representative. The final presentation to the Court is crucial to securing a favourable outcome. We have extensive experience with removal of disqualification cases in Courts throughout Scotland and would be delighted to offer our expertise to assist with your case.
Michael Lyon Solicitors Limited will ensure your application is given the best possible chance of succeeding so feel free to contact our office or send an email with the particulars of your proposed restoration of driving licence application. We will always provide free and, more importantly, honest advice about the prospects of securing the early return of your driving licence.
Where an application to remove a disqualification is refused, a further application under will not be entertained if made within three months after the date of the refusal. The reality is that if your initial application is unsuccessful, then it is rather unlikely that the decision will be reversed three months later. We prefer to get it right first time around and, for tactical reasons, we do sometimes advise clients to defer their application until more of the disqualification has been served or to a time when the grounds of the application have become more forceful.
Michael Lyon Solicitors Limited only accepts instruction on a private fee paying basis and therefore it is imperative to time your application correctly to ensure the money you have invested gives you the best return: i.e. the early return of your driving licence.
We would however advise that you contact us around six weeks prior to the application becoming competent. This should allow for sufficient time for your application to be prepared and lodged as close as possible to the expiry of the requisite time limit.
The petition is a legal document which will set out the basis of the application. Similar to exceptional hardship submissions, vouching is crucial for this type of case. If, for example, the petition states that the early removal of disqualification would mean the accused could secure a new job, then letters should be lodged alongside the petition confirming the position in this regard.
The Crown will undertake appropriate enquiry by ordering a Police Report. This report is not just restricted to checking whether an applicant has been of good behaviour and not come to the attention of the authorities following the imposition of the ban. Enquiry is often conducted in relation to the grounds contained within the petition in order to ensure that the basis of the application is truthful and not overstated in any way. A positive Police Report can be a deciding factor for the early removal of disqualification and we always advise clients to fully cooperate with any such enquiry.
Once the petition to remove the disqualification is drafted, approved and lodged with the Court, a hearing will be assigned at which time representations are made to the Court that the application should be granted as craved. We have dealt with a number of restoration of licence cases where the Sheriff has simply granted the application without even wishing to be addressed upon the merits. Never underestimate the importance of a properly drafted petition.
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