Looking whether to disqualify a defendant under the totting up provisions a defendant can put forward mitigating circumstances such as exceptional hardship.
If the Court finds exceptional hardship it has a discretion and can then choose not to disqualify or can look to disqualify for a shorter period than the minimum mandatory period, 6 months for a first totting up ban.
‘Hardship’ has been interpreted fairly strictly.
In Brenan v McKay, a taxi driver facing disqualification of 6 months said he would probably lose his job. The Court decided that this was hardship but it was not exceptional hardship.
In Owen v Jones the justices, without hearing any evidence, accepted a policeman’s evidence that a disqualification would most likely mean the loss of his job and house. This apparently accorded with the courts belief and they refrained from disqualification finding exceptional hardship. The divisional court upheld this decision.
Exceptional hardship is not confined to hardship resulting to the motorist. Family or employees may be the victims where a defendant is disqualified. In the past the Court have said that the hardship suffered by such family members or employees maybe more readily regarded as ‘exceptional’ than any hardship to the offender himself. This is because third parties, unlike the driver are generally innocent victims and do not appear in the Court as defendants.
The basic approach is that once a person reaches 12 points on his licence the Court will disqualify unless mitigating circumstances such as exceptional hardship can be made out and the Court if satisfied those circumstances justify a reduction of the driving ban or even no disqualification.
A driver cannot presume that the existence of exceptional hardship means an automatic escape from a disqualification. The onus is on the driver to establish on the balance of probabilities that exceptional hardship exists.