BLOG: Not Really ‘Closing the Loophole’

Jim Olphert reviews the changes to Sentencing Council guidance on exceptional hardship applications.

On 27th October 2020 a number of national newspapers published stories on the closing of a significant ‘loophole’ in driving cases, which allowed those who had accumulated 12 or more penalty points to avoid a disqualification from driving. The ‘loophole’ referred to is the use of the exceptional hardship provision in section 35 of the Road Traffic Offenders Act (“RTOA”) 1988. 

Exceptional Hardship

An application asserting exceptional hardship is one of two applications often dealt with after a conviction for a driving offence, and those regularly before the courts in this area will know the other to be special reasons. Whilst their effect is similar, they are the polar opposite of one another in terms of the factors that the court must consider.

One of the distinctive limbs of the test for special reasons is that the matters raised must relate to the offence and not to the offender. Authorities define what circumstances might meet this test, such as moving your car a few yards or driving a pregnant mother to hospital.

By contrast, an application for exceptional hardship requires the issue to relate to the personal circumstances of the Defendant. There is a much more restrictive legislative framework for these applications, and section 35(4) of the Road Traffic Offenders Act 1988 requires the court in evaluating such an application to disregard:

a)    any circumstances that are alleged to make the offence (or any of the offences whose penalty points are to be taken into account) not serious;

b)    hardship, other than exceptional hardship; or

c)    any circumstances which, within the three years immediately preceding the conviction, have been taken into account to reduce or avoid a totting up disqualification.

The bar has always been a high one. 

One would expect as much from the use of the word ‘exceptional’. Ultimately, the test requires an analysis by the lay bench or District Judge of the personal circumstances of the Defendant and the impact that any disqualification might have upon them, and more importantly, those who depend upon the Defendant. Exceptional hardship applications require proof to the civil standard.

A number of scenarios may be suggestive of an exceptional case, though, of course, each case must be assessed on its own merits. Each case, and each circumstance, is of relevance. For example, if the defendant requires a vehicle for work, cannot use other transport at all, has no colleagues who could drive them instead and, as a result, would entirely lose their employment or income, this would point in favour of a finding of exceptional hardship. Other examples are where there might be a meaningful impact on dependent family members and children, both in terms of care and financial support. It is thus routine in exceptional hardship applications for evidence to be required on oath from the defendant, and potentially further witnesses. 

So, what has changed?

Frankly, not a great deal. Despite the headlines, the test for exceptional hardship remains the same.

The Sentencing Council has simply revised its guidance by codifying various factors which all courts should have had regard to when considering any application. The explanation for the change to the guidance can be found here. The updated guidance appears targeted at minimising aberrant results by which the statutory test is applied more liberally than intended. It sets out three core principles applicable to exceptional hardship applications. These are:

(1)    That loss of work should be seen as an inevitable consequence of a disqualification from driving; or, put another way, that it is anticipated that anyone banned from driving will face some hardship. This does not add significantly to the existing test, which self-evidently requires a given case to be exceptional. This additional guidance is thus unlikely to have an appreciable effect on the court’s approach. 

(2)    That courts should be cautious in allowing applications without evidence. Again, this is unlikely to make a material difference. The guidance emphasises that there is a standard of proof, rather than simply an evidential burden, upon defendants, but as above it is routine for evidence to be taken on oath in hearings and for witnesses to be questioned. It is also routine for defendants to bring documentary evidence to support their case. The only significant feature of the updated guidance is that unrepresented defendants should be forewarned about the need to produce proper documentation. 

(3)    That the court, on a finding of exceptional hardship, has the power to reduce a disqualification, rather than not impose one at all. Whilst this has always been the case, the updated guidance place greater emphasis on this option compared to previous versions. It may be, therefore that benches will require submissions that grapple in greater detail with the exercise of this discretion than they might previously have done, particularly in cases where the risk of real hardship is significantly reduced in the short term. 

The updated guidance, which came into effect on 1st October 2020, can be found here.

Conclusion

The core advice to anyone considering advancing such an application remains the same: ensure that any application is supported by as much evidence as can reasonably be gathered.

Signed statements or references regarding loss of work or income and the expectation to supplement this with live evidence, likely represents the bare minimum required to discharge the burden on an exceptional hardship application. Pursuant to the updated guidance, evidence ought to be as detailed and comprehensive where possible and now should deal with why a short disqualification would not be practicable.

Jim Olphert joined Carmelite Chambers in November 2020. Alongside his work in general crime, financial crime and professional discipline he also has significant experience dealing with road traffic matters. He has particular expertise in running both exceptional hardship and special reasons arguments for both private clients and business owners.