Where no offence-specific guideline exists, refer to General guideline: overarching principles
A: Principles
Disqualification is part of the sentence. Accordingly when setting the “discretionary” element of the disqualification (i.e. disregarding any period being spent in custody – see below) the court must have regard to the purposes of sentencing in section 57 of the Sentencing Code, which include: the punishment of offenders, the reduction of crime, the reform and rehabilitation of offenders and the protection of the public, when deciding the length of any disqualification.
In setting the length of any disqualification, sentencers should not disqualify for a period that is longer than necessary and should bear in mind the need for rehabilitation (for example, by considering the effects of disqualification on employment or employment prospects).
Sentencers should also be mindful of the risk of long disqualifications leading to further offences being committed, by reason of a temptation to drive unlawfully.
B: Minimum disqualification period
The minimum disqualification period for this offence is five years. This is increased to six years’ disqualification if the offender has been convicted of this same offence in the 10 years preceding commission of the present offence.
C: Special reasons
The period of disqualification may be reduced or avoided if there are special reasons. These must relate to the offence; circumstances peculiar to the offender cannot constitute special reasons. To constitute a special reason, a matter must:
- be a mitigating or extenuating circumstance;
- not amount in law to a defence to the charge;
- be directly connected with the commission of the offence;
- be one which the court ought properly to take into consideration when imposing sentence.
D: Interaction with custodial period – same offence
Under section 35A of the Road Traffic Offenders Act 1988 where a court imposes a disqualification in addition to a custodial sentence or a detention and training order for this offence, it must extend the disqualification period to take account of the custodial term imposed by:
- one half of the custodial term imposed for an immediate standard determinate sentence (except where release is at the two thirds point – see below); no extension period should be imposed where a sentence is suspended.
- two thirds of the custodial term for:
- an extended sentence; or
- a standard determinate sentence of over seven years (for offences committed on or after 28 June 2022)
- the term specified in the minimum term order of a life sentence.
This will avoid the disqualification expiring, or being significantly diminished, during the period the offender is in custody. The table at section 166 of the Sentencing Code provides further detail. (Note: this table applies to disqualification for non-Road Traffic Act 1988 offences but the principles apply to disqualifications imposed under that Act as well.)
Periods of time spent on remand or subject to an electronically monitored curfew are generally ignored. However, If the time spent on remand would lead to a disproportionate result in terms of the period of disqualification, then the court may consider setting the discretionary element (i.e. the period which would have been imposed but for the need to extend for time spent in custody) to take account of time spent on remand. This should not reduce the discretionary term below the statutory minimum period of disqualification.
E: Interaction with custodial period – different offence
The Court may be imposing a custodial sentence on the offender for another offence, which is not the one for which they are being disqualified. In this instance, under section 35B of the Road Traffic Offenders Act 1988 it should have regard to “the diminished effect of disqualification as a distinct punishment if the person who is disqualified is also detained in pursuance of a custodial sentence” .
Where the court is intending to impose a disqualification and considering a custodial sentence for that and/or another offence, the following checklist may be useful:
- Step 1 – does the court intend to impose a custodial term for the offence for which they are imposing a disqualification?
YES – the court must impose the appropriate extension period and consider step 2.
NO – go to step 3.
- Step 2 – does the court intend to impose a custodial term for another offence (which is longer or consecutive) or is the defendant already serving a custodial sentence?
YES – consider what uplift in the period of discretionary disqualification (i.e. the period which would have been imposed but for the need to extend for time spent in custody) is required, having regard to the diminished effect of disqualification as a distinct punishment. Ignore any custodial term imposed for the offence for which disqualification is being imposed. Discretionary period + extension period + uplift = total period of disqualification
NO – no further uplift required. Discretionary period + extension period = total period of disqualification
- Step 3 – does the court intend to impose a custodial term for another offence or is the defendant already serving a custodial sentence?
YES – then consider what uplift in the period of discretionary disqualification is required, having regard to the diminished effect of disqualification as a distinct punishment. Discretionary period + uplift = total period of disqualification
NO – no increase is needed to the discretionary period.