3. ‘Totting up’ disqualification

Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.

Incurring 12 or more penalty points within a three-year period means a minimum period of disqualification must be imposed (a ‘totting up disqualification’) – s.35 Road Traffic Offenders Act (RTOA) 1988.

The minimum period is:

  • six months if no previous disqualification is to be taken into account
  • one year if one previous disqualification is to be taken into account
  • two years if more than one previous disqualification is to be taken into account.

A previous disqualification is to be taken into account if it is:

  • not less than 56 days; and
  • imposed within the three years immediately preceding the date on which the current offence (or most recent of the current offences) was committed.

Totting up disqualifications, unlike other disqualifications, erase all penalty points.

The court should first consider the circumstances of the offence, and determine whether the offence should attract a discretionary period of disqualification. But the court must note the statutory obligation to disqualify those repeat offenders who would, were penalty points imposed, be liable to the mandatory “totting” disqualification, and should ordinarily prioritise the “totting” disqualification ahead of a discretionary disqualification.

If the offender has 12 or more penalty points the court must order the offender to be disqualified for not less than the minimum period unless the court is satisfied, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction and thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified – s.35(1) RTOA 1988.

In deciding whether there are grounds to reduce or avoid a totting up disqualification the court must not take into account:

(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.

– s.35(4) RTOA 1988

When considering whether there are grounds to reduce or avoid a totting up disqualification the court should have regard to the following:

  • It is for the offender to prove to the civil standard of proof that such grounds exist. Other than very exceptionally, this will require evidence from the offender, and where such evidence is given, it must be sworn.
  • Where it is asserted that hardship would be caused, the court must be satisfied that it is not merely inconvenience, or hardship, but exceptional hardship for which the court must have evidence;
  • Almost every disqualification entails hardship for the person disqualified and their immediate family. This is part of the deterrent objective of the provisions combined with the preventative effect of the order not to drive.
  • If a motorist continues to offend after becoming aware of the risk to their licence of further penalty points, the court can take this circumstance into account.
  • Courts should be cautious before accepting assertions of exceptional hardship without evidence that alternatives (including alternative means of transport) for avoiding exceptional hardship are not viable;
  • Loss of employment will be an inevitable consequence of a driving ban for many people. Evidence that loss of employment would follow from disqualification is not in itself sufficient to demonstrate exceptional hardship; whether or not it does will depend on the circumstances of the offender and the consequences of that loss of employment on the offender and/or others. Useful information can be found in the Equal Treatment Bench Book (see in particular Chapter 11);

Where it finds that there are grounds for mitigating the ‘normal consequences of the conviction’, the court may consider whether this can be achieved by ordering a period of disqualification which is shorter than the statutory minimum or by ordering that the offender should not be disqualified at all.

Where the court does not find grounds for mitigating the normal consequences of the conviction then a period of disqualification of at least the statutory minimum must be imposed.

Consult your legal adviser for further guidance on minimum periods and applications for avoiding or reducing the minimum period.