Tuesday, November 26, 2013

A Close Call

Following the last couple of years' upheaval and reorganisation, my colleagues and I don't see a lot of traffic cases these days, as they are concentrated into 'gateway' courts, an arrangement that saves money and trouble for the police and the CPS.

For one reason or another a case came before us last week in which we had to deal with a driver who had accumulated the dreaded twelve points that made him liable to a six-month ban as a 'totter'. Legal Aid is not available for these cases, so he came before us on his own to ask us to find that he would suffer Exceptional Hardship from a driving ban. Along with many colleagues I tend to be a beady-eyed sceptic when these cases come in, but we listened carefully and we felt that our man was genuine when he said that he was supporting his small family in a rented house with a modestly-paid job as a mechanic, a job that required a driving licence. The case law and the guidance that we heard from the clerk was familiar, in that 'exceptional hardship' needs to be pretty strong before it can be right to decide not to endorse or disqualify. A theme that runs through successful EH submissions is that hardship to third parties can be persuasive. In this case we felt that this man's efforts to look after his wife and two small children in a foreign land (he was from Eastern Europe)  justified us in deciding not to endorse or disqualify, although we still fined him and ordered costs and surcharge, as well as endorsing his licence.

He looked mightily relieved, as well he might, and thanked us effusively, at which point the usher did her job and ushered him out of the door.

Not every bench would have seen things the way we did, and neither a strict approach or a softer one is definitively right or wrong. In these days of prescriptive guidelines  this is one of the diminishing chances to use our judgement.

A couple of footnotes: I warned our man that he still had 12 points on his licence, and that he could not use the Exceptional Hardship argument again for another 3 years. As he left the courtroom one of the lawyers sitting in court muttered "I should have asked for his lottery numbers".


  1. Always a tricky one and of course we don't have all the facts to hand that you did. One thing that always worries me though is the point (absolutely correctly stated) that he can't use the same argument again - what ACTUALLY stops him from doing so. Is there a central record of EH cases? If he next appears in (say) Manchester, will there really be a note on the file of the facts put before the earlier bench? He might after all put a different EH argument which I think CAN be made (though I stand to be corrected on that)

    Of course an assumption can be made that as he has more than 12 points an EH argument may have been made and succeeded. On the other hand, it might simply have been that his Driving licence and/or a DVLA print out wasn't available at sentence. Or it could have been a simple mess up...

    My court IS a gateway court and we hear such cases all the time...and I've often mused and wondered...

  2. Just a quick question-are you allowed to use the fact that he is a foreign national as a factor in his favor before the court? Or is this just another way of saying he is a long way from home-such as a person on trial in Newcastle whose only family is in Penzance?

  3. Being a foreign national is neither here nor there, but it is a piece in the jigsaw that showed him to be a working family man, paying tax and rent, so we didn't want to throw him out of work.

  4. I know you don't give all the details here, so there could be good reason, but it seems to me that it is pretty hard to build up so many points, and you have plenty of chance to start driving more carefully and following the law better. But he didn't, and then you excused him for it, and there is still a (presumably) bad and dangerous driver still on the road, waiting for an accident... perhaps this is a reason for prescriptive guidelines.

    Although perhaps the details justify it, and obviously you can't tell us those details.

  5. If being a foreign national is neither here nor there (and I agree) then why mention it all?
    There are lots of decent hard working men with a small family to support. By mentioning ethnicity you leave the way open for people to think that being from overseas is an advantage in totting cases.

  6. Maybe lucky Legal Aid was not available. Might a posh, eloquent advocate, with the inference that 'our man' could afford one, have evoked less empathy ?

  7. I wonder if he will be able to afford what should be, with all those points, an enormous bill for his car insurance.

  8. nothing preventing you getting legal aid for hardship arguments. One of the widgery criteria is 'it is likely i will lose my livelihood'

    another is : 'it is someone elses interests that I am represented'

    both would apply here :

    but with him working of course he may have been outside the meagre income which would qualify him under the means test

  9. The reasons appear on the record of previous convictions which another Bench will see.

  10. In my experience the only place the reasons are recorded is the Court Register. It is for the defendant to prove he has not used the reason before. In practice the legal adviser should spot the possibility and look it up on the computer or (if in a different region) get an extract from the relevant register to check. Different EH reasons can be put forward so getting the precise wording is important. The short cut is to enquire in innocent tones what the defendant said last time and then remind him he can't use it again.

  11. Should one really get three points just for parking opposite double-white lines ? We had them in our village from when the road used to be the main road, but it was bypassed, yet the DWLs were never removed. Fortunately, after a traffic calming scheme was installed they have now gone. I actually pointed out this anomaly to the highways engineers at the public consultation, and they didn't even know about this draconian penalty.


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