Exceptional Hardship Arguments and Totting Up

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Exceptional Hardship Arguments and Totting up

When you receive additional penalty points that bring the total points on your licence to 12 or more within three years, this will lead to you falling for consideration of a 6 month totting disqualification from driving. This can be increased if you have been disqualified within the preceding 3 years.

A totting ban in those circumstances can be avoided, if the Magistrates accept that losing your licence would cause exceptional hardship to you or those around you. In most criminal cases the prosecution must prove something beyond reasonable doubt, however with ‘exceptional hardship’ arguments there is a reverse burden of proof. This means that it is for the defence to prove that ‘exceptional hardship’ would be caused, rather than for the prosecution to disprove it. It is for the defence to raise this legal argument on the balance of probabilities i.e. “so it is more likely than not”.

The key element here is to corroborate anything that you assert, as the Prosecution will have the opportunity to question you in court under oath, on what you have asserted. Unless we raise a watertight argument, the CPS will seek to suggest to the court that the difficulties a ban would cause are surmountable. The Court accepts that all drivers who receive a disqualification are caused some hardship. A driving ban often causes inconvenience and makes ordinary tasks a logistical minefield. However, to be successful, we have to show something more than that – it has to be exceptional hardship and we have to demonstrate that there are no measures that could be put in place that would mitigate that hardship.

Experience has taught us that the Magistrates are impressed if you can support what you are saying with for example, diaries/schedules that demonstrate the frequency and location of the journeys that you maintain require you to have a driving licence and with supporting letters from other parties involved who can corroborate what you say. Just think of it in terms of this – the court won’t just take your word for it that exceptional hardship will be caused. We need to make it absolutely clear and compelling. If we can do that the CPS will often have no questions for you in cross examination.

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During an initial consultation, we will ask you about your personal and professional life in order to identify whether there is merit in making an exceptional hardship argument. We will advise you on the supporting evidence that you will need to provide to the Court to ensure that the argument is watertight. We will also challenge you on any areas that appear to weakness in your case, so that you can provide as much information as possible to make the argument compelling.

This is probably the type of case that we deal with most frequently and we will be able to give you a realistic assessment of your prospects of success. All of the arguments that we have made on behalf of our clients have been successful, partly because we would not waste your money if your case had no merit and also thanks to our significant experience in this area that simply means that we know the very best and most effective  way to present your case to the court.

Examples of Exceptional Hardship include:

  • Where a driving ban would result in job loss, which would in turn would lead to an inability to pay mortgage, rent or household bills, thereby effecting you and/or your family.
  • A child or elderly or infirm relative depends on you to provide a lifeline to the outside world e.g., shopping, medical appointments etc, where there is no one else who can provide this service and public transport is not an option.
  • Loss of your licence would have a significant negative impact on your own or someone else’s business, causing the business to close or make redundancies and thereby the loss of peoples jobs.

The above examples are by no mean an exhaustive list. Exceptional hardship cases arise in may different circumstances and with the right legal guidance, you can ensure that your case is expertly presented to the Court.

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