‘Exceptional Hardship’- Mitigating Factors in Speeding Offences

‘Exceptional Hardship’ is frequently pleaded in speeding offence cases where it can be shown that it would have a detrimental effect on a person’s business or employees jobs. By law if you accumulate twelve penalty points or more within a three year period you will be summonsed to appear in court and face disqualification for a minimum period of six months. This is commonly known as a ‘totting up’ disqualification. Motorists finding themselves in this position can make an application to the court not to disqualify on the grounds of “Exceptional Hardship”; which is best described as “Real Hardship”. “Exceptional Hardship” will usually involve real hardship to the motorist or third parties who will be affected. Retention of your driving license is vital if you are to go about your daily work which involves driving safely and in compliance with the posted speed limits.

Tom Harrington LL B F Inst. MTD
27 March 2018

A number of drivers were speeding on a US highway. A traffic cop pulls over one driver and starts to write him a ticket. The unlucky driver protests saying: “Officer, but all the other cars were speeding too – why me?” The cop smugly replies: “Look Buddy, when you go shooting duck, you can’t shoot ‘em all”.

The first speeding infraction in the USA was committed by a New York City taxi driver in an electric car on 20 May 1899.The driver was Jacob German who drove for the Electric Vehicle Company, which leased its electric taxicabs to be used around New York. German was driving his taxi at a blistering speed of 12mph down Lexington Street, Manhattan. At that time the speed limit was 8mph on straight-a-ways and 4mph when turning. A police officer on a bike observed the 26-year-old driver speeding, promptly arrested him and imprisoned him in the East 22nd Street station. There is some contention on whether he actually received a paper ticket or not, which would also have made him the first person to be cited for committing a speeding offence. Outside of the USA, the first known speeding offence is thought to be committed in GB on January 28 1896, around three years before Mr. German was arrested for speeding. This infraction was committed by a Mr.Walter Arnold of East Peckham, Kent. Mr. Arnold was travelling in a 2mph zone (yes, 2mph) and was going at the breakneck speed of 8mph. You could have walked as fast. A constable mounted his push bike and apparently a five-mile chase ensued. Arnold was caught and sent before the beak where he was fined one shilling.

This article specifically deals with speeding and its consequences including the penalty points system, court appearance, various evidence (letters, character references etc.), mitigating circumstances where “Exceptional Hardship” can be shown.

Case law will be presented including some unusual cases and the case of a prominent person who didn’t know whether he or his wife was driving at the time of the speeding infraction. The conclusion will consist of a summing up of the main article.

Ireland’s Most Prolific Speedster?
In 2009, details emerged of how our police force (Gardai) finally caught up with the country’s most reckless driver. He had been wanted in several counties after racking up scores of speeding and parking fines. However, each time the serial offender was stopped for speeding, he managed to evade justice by giving different addresses. But then his cover was blown. It was discovered that the man every member of the Gardai had been looking for – a Mr. Prawo Jazdy wasn’t the sort of prized villain whose apprehension leads to an officer winning an award. “Prawo Jazdy” is actually the Polish for driving license and not the first and surname on the license. It was quite embarrassing to see the Garda Pulse System had created Prawo Jazdy as a person with over 50 identities. In a bid to avoid similar mistakes being made in the future, relevant guidelines were amended. And if nothing else was learned from this driving and speed-related debacle, Gardai should now know at least two words of Polish. And for the seemingly elusive Mr. Prawo Jazdy, he became a cult hero among Ireland’s second largest immigrant population.

Penalty Points System
Most drivers will be aware of the penalty points system operating in the UK. Additionally, most are aware of the law stating that a driver who accumulates twelve penalty points with a three year period will be subject to a potential six month driving ban under “totting up” procedures. For many people, the thought of appearing in court is a daunting experience however; it is not all bad news. In the first instance, the court case is an opportunity for the driver to “fight his case”. Secondly, even if the driver pleads guilty or faces a totting up” ban, he has the opportunity to convince the court that a driving ban would cause “Exceptional Hardship”.

Speed Cameras
Speed cameras (or to be politically correct-safety cameras) have been haunting drivers-even cautious drivers-for decades since the introduction of the Road Traffic Act (RTA) 1991. This Act resulted in speed cameras being used across England, Scotland and Wales and allowed evidence from approved cameras to be admissible in court.
Research conducted by the Institute of Advanced Motorists (IAM) – now IAM RoadSmart – the UKs largest independent road safety charity, indicated that 80pc of drivers found the use of speed cameras acceptable and an important factor in reducing road fatalities. However, speeding offences can be easily committed – even by the most safety – conscious drivers. Local councils can set their own speed limits in certain areas, and these must be clearly signed therefore, new visitors to an area could find themselves in a confusing situation if they are not aware of local speed limits. Also, sales representatives with multiple appointments in the day could easily find themselves accumulating penalty points if they are in ‘unknown territory’. Despite the support for speed cameras and their widespread use, over 92,000 people were disqualified from driving between July 2013 and June 2014.

“Exceptional Hardship”
Few things are less fun than hearing and seeing the “twos and blues” flashing lights behind you when you’re trying to drive somewhere in a hurry. Maybe you made a mistake and weren’t watching your speed; maybe you were brazenly violating the law. Either way seeing those lights means you’re probably getting a ticket and your wallet is about to take a hit. By law if you accumulate twelve penalty points or more within a three year period you will be summonsed to appear in court and face disqualification for a minimum period of six months. This is commonly known as a ‘totting up’ disqualification. Motorists finding themselves in this position can make an application to the court not to disqualify on the grounds of “Exceptional Hardship”; which is best described as “Real Hardship”. “Exceptional Hardship” will usually involve real hardship to the motorist or third parties who will be affected. Examples include:

• Hardship to employer or employees of employment
• Loss of home
• Disability
• Inability to care for an aged or loved one
• Risk of redundancies
• Hardship to creditors
• Living in a remote location

Courts are often skeptical of applications for “Exceptional Hardship” and will investigate any request not to disqualify therefore, it is important that any application is thoroughly prepared and presented, along with appropriate supporting evidence.

Case Law
The Road Traffic Offenders Act (1988), in particular s35 (1) has afforded the courts a certain amount of discretion in determining whether “Exceptional Hardship” has been made out. The courts, in turn, have made clear that each “Exceptional Hardship” case will ultimately be decided on its own facts and circumstances as in Carmichael v Shevlin (1992). Synopses of the most important cases are:

In Robinson v Aichison (1986) the loss of a business owner’s license would result in the collapse of the business and loss of six employees. “Exceptional Hardship” established. In Allan v Barclay (1986), while the loss of employment is not in itself “Exceptional Hardship”, subsequent risk to family home and inability to meet other debts meant “Exceptional Hardship” was established. In Crumpas v Ingram (1991), a driver was the author of his own misfortune and the consequences to him an others had to be accepted therefore “Exceptional Hardship was not established. In Ewan v Orr (1993), hardship had to extend beyond an effect on the driver and his immediate family therefore; “Exceptional Hardship” was not established. In Forson v Procurator Fiscal Alloa, unreported, (2008), hardship to the accused in itself will usually be insufficient to establish “Exceptional Hardship”. In Railton v Houston (198,) the prospect of loss of employment resulting in likely loss of family home, that could result in hardship for immediate family. “Exceptional Hardship” was established. In the recent high profile case (March 2018) of cigar smoking Captain James Golding who was clocked speeding at 120mph in his luxury sports car he pleaded “Exceptional Circumstances”. He was spared a ban as he was about to set off for a six-month tour of the Falkland’s. It was contended that a ban would hamper his ability to carry out his duties and could ruin his military career. Magistrates in Ipswich Magistrates Court agreed there were “Exceptional Circumstances” and Captain Golding retained his license. However, he was fined £781 with six penalty points on his license. He was also ordered to pay £85 in prosecution costs and a £78 victim surcharge.

Avoiding a Driving Ban
According to the 2011 census, 57pc of the UK population drive to work. As well as making the commute to work more difficult, losing your license could be a huge inconvenience in terms family and social commitments. If the defendant can persuade the courts that a driving ban would lead to “Exceptional Hardship”, they could possibly avoid losing their license. The submission of this argument to the courts is known as “mitigating circumstances”. The basis of this argument is:

• The obligation is on the defendant to show that a driving disqualification should not be imposed
• The hardship experienced is not limited to the driver but could also include an innocent third party who depends on the driver.

Convincing the courts can be a complex matter as there is no specific legal definition of “Exceptional Hardship”. Each case will be judged on its merits. Persons seeking to persuade the court that a driving ban would cause “Exceptional Hardship” must lead evidence to that offence. There is no evidential burden upon the courts to prove that “Exceptional Hardship” exists. The onus of proof is entirely on the driver. Unlike in criminal cases, however, the courts must prove the guilt of the accused beyond a reasonable doubt and the standard of proof in “Exceptional Hardship” cases is on the balance of probabilities. There can be several different sources of evidence in an “Exceptional Hardship” case. Some of the main reasons are: Sworn witness testimony; sworn affidavits; signed letters; legal submissions; character references and other documentary evidence. (In an effort to keep this article to circa three thousand words, we will only look at three of the above i.e. letters; character references and other documentary evidence)

Most of the evidence you use will be in the form of letters. They need to explain the practical effects of a driving ban. They can be:

• A letter from your employer saying that you will lose your job.
• A letter from your employer explaining why you need to drive for work
• A letter from your partner, parents, family members, explaining the effect of a ban
• Letters from sports clubs, organizations, charities, explaining how you drive for them

A good letter is worth is worth its weight in gold. It is much more effective in court when information comes from the above. A good example is charity work. If you say you can’t do charity work if you’re disqualified, it can come across as self-serving and in bad taste. Hand in a letter from the charity concerned and the work is done for you. It is nearly always better to produce a letter than to have a witness appear in person. You can’t cross-examine a letter.

Character References
Generally, character references can sometimes be helpful. They show that you take the case seriously and can help present you in a good light. They are less important than letters giving practical information about “Exceptional Hardship”. A few rules for letters and references:

• Short (1 page)
• Stick to the point
• Typed and signed
• Don’t tell the court what they should do – that’s their decision

Other Documentary Evidence
In a court of law, only those facts that are within judicial knowledge are accepted as proved without evidence being led to prove them. These are facts which are so notorious that they are known to everyone. Thus, for example, it does not need to be proved that lawnmowers are used to cut grass or the city of London is busy during rush hour. However, the status of your mortgage, the existence of other debts, the position of your employees and the financial strength of your company are not within judicial knowledge. The crucial importance of documentary evidence is well illustrated by the decision in Marshall v McDougall (1991) . Here the accused was the Managing Director of a company involved in the installation and servicing of central heating systems. He had several employees who would lose their jobs if the business failed. His role also entailed extensive travel throughout Scotland. “Exceptional Hardship” was established.

Is Losing Your job Enough?
There are a number of Scottish cases ending with Brennan v McKay (1996), that say, losing your job will result in hardship but not “Exceptional Hardship”. Magistrates in England and Wales are trained to follow this principle.
You can try and argue that the Scottish cases are not binding (which they are not) but a much better approach is to widen the ground if possible. Look for the knock on effect on the defendant, their business and their family i.e. “if I lose my job, I will lose my family home; I am 60 years old, if I lose my job, I am unlikely to find alternative employment at the same level.” To convict you of a speeding offence, the prosecution has to prove beyond a reasonable doubt that you (a) were driving (b) a motor vehicle (c) on a public road or public place and (d) at a speed exceeding the limit for the road. Only then can you be found guilty of driving in excess of a speed restriction.

Tell the Truth
Remember, you should never invent a defense in order to defend a speeding allegation – you either have a legitimate defense to defend your alleged excess or you don’t. Should you be caught trying to mislead the police – by saying that you were not driving when you were – then you will in all likelihood be charged with perverting the course of justice. (See Lord Howard below). By lying to the police you will have turned a relatively minor speeding ticket into a possible prison sentence. The risk of misleading the courts greatly outweighs the potential benefits.
The following case highlights the dangers of giving misleading information. On 1 December 2016, at Wimbledon Magistrates’ Court, Lord Michael Howard was convicted of failing to identify the driver of a car belonging to him which was speeding. His vehicle was clocked at 37mph in a 30mph zone in South London and he and his wife Sandra said they could not recall who was driving at the time. Lord Howard is Queens Counsel and former leader of the Tory party. He was fined £900, with £625 costs and £90 victim surcharge and received six penalty points on his license. However, in January 2018 and on appeal to the High Court, his conviction was quashed. The core issue in the case was that Lord Howard had completed the form giving the required details of his own address, his date of birth, but while he mentioned his wife, as the other possible driver, he failed to provide details. The second part of the form, which allowed for details of other drivers to be entered, was left blank.

As Queens Counsel, Lord Howard should have been fully au fait with Section 172 of the Road Traffic Act (RTA) (1988) which is a well-known provision that many errant drivers will have received ( “Section 172 notice”) requiring them to name the driver on a particular day and time.

Unusual Speeding Cases
Some drivers have escaped conviction with more unusual defenses. David Copeland of Telford, Shropshire was let off when it was established that he had received a fine in error. His vehicle was captured on the same photo as a motorbike which had broken the speed limit – despite the fact that his vehicle was parked at the side of the road and vacant at the time. Meanwhile, last year (2017), David Erasmus, from Llanelli, West Wales successfully contested a speeding ticket when he found that the white lines painted on the road as a secondary measure of speed were too close together. Mr. Erasmus measured the distance between the lines and found that they were three inches too short – his case was dismissed. And in 2004, Steve Lucas from St. Helen’s Merseyside was let off a charge of driving at 115mph after he managed to prove that the Fiat Punto he was driving at the time simply couldn’t go that fast. Lucas took his car to a test track where a former police driver managed to get it go at 104mph, but no faster. His conviction was quashed, but he pleaded guilty to a lesser charge of 85mph.

It is said that speed kills. Speed in itself does not kill; it’s inappropriate speed that causes KSIs. Driving faster than is allowed in a particular area is referred to as speeding. Speeding is also defined as driving over the posted speed limit or at a speed that is inappropriate given the driving conditions e.g. rain, fog, traffic volume etc. Speed limits are set and enforced to save lives and reduce crashes. Driving within the speed limit maximizes your stopping distance, giving you more time to react to the actions of other road users around you like vehicles, pedestrians and cyclists. Also, to react to changes to the road environment itself such as pot holes and other obstacles. Should you be caught for speeding and go to court you may lose your driving license, however you can plead mitigating circumstances. Mitigating circumstances may be considered by the court where the defendant has accumulated more than 12 or more penalty points on his/her driving license and the court is able to impose a disqualification from driving for six months. If the defendant is able to prove on the balance of probabilities that mitigating circumstances exist, the courts have discretion to either disqualify the defendant, or they may disqualify him/her for less than six months. A defendant seeking to avoid disqualification under the penalty points system will normally need to persuade the court that such a penalty is likely to cause “Exceptional Hardship”. Evidence must be presented in court to support this assertion. As with any other offence and before sentencing, the defendant’s solicitor will supply the court with a plea in mitigation, where there is discretion to disqualify the defendant from driving.
Where there is a serious driving offence and the court is considering a custodial sentence, mitigating factors should be presented to persuade the court to deal with the matter other than by way of imprisonment, such as through a community sentence or a fine. Offender mitigating factors relate to the personal circumstances of the defendant. The points commonly raised are: the defendant’s age, number of years he/she has been driving or it may be that the defendant’s job requires driving considerable mileage each year. Other pleas include: disability or a serious health problem, a risk to the employment of others whose jobs could be put at risk by the disqualification of the driver. Remember, “Exceptional Hardship” has no statutory definition in law and it will be at the discretion of the courts to decide if your circumstances warrant leniency. In effect it can mean a level of hardship that will also impact on innocent parties. It is a common misconception that if a defendant merely suggests that a driving ban would be particularly harsh punishment, the court will be lenient. In fact, the defendant has to convince the court that such a punishment would be exceptionally harsh, hence the term – “Exceptional Hardship”. The obligation is on the defendant to show why a driving ban should not be imposed. This is not a straightforward task and is one which a motorist should seek legal assistance from a specialist motoring lawyer.

Finally, if you drive in accordance with the posted speed limits, you should have no reason to worry and will not have to contend with the trauma of appearing in court, pleading “Exceptional Hardship”. Retention of your driving license is vital if a you are to go about your daily work which involves driving safely and in compliance with the posted speed limits. Losing your driving license can have dire consequences such as: losing your livelihood, your home, jobs of your workers etc. However, if prosecuted and you can successfully plead “Exceptional Hardship” you will have convinced the court that your license is necessary to continue driving, even though under normal circumstances you would have been disqualified, as mitigating factors such as “Exceptional Hardship” didn’t exist.

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