4. Discretionary 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.

Whenever an offender is convicted of an endorsable offence or of taking a vehicle without consent, the court has a discretionary power to disqualify instead of imposing penalty points. The individual offence guidelines indicate whether the offence is endorsable and the number or range of penalty points it carries.

The number of variable points or the period of disqualification should reflect the seriousness of the offence. Some of the individual offence guidelines include penalty points and/or periods of disqualification in the sentence starting points and ranges; however, the court is not precluded from sentencing outside the range where the facts justify it. Where a disqualification is for less than 56 days, there are some differences in effect compared with disqualification for a longer period; in particular, the licence will automatically come back into effect at the end of the disqualification period (instead of requiring application by the driver) and the disqualification is not taken into account for the purpose of increasing subsequent obligatory periods of disqualification (Road Traffic Offenders Act 1988, ss.34(4), 35(2), 37(1A)).

In some cases in which the court is considering discretionary disqualification, the offender may already have sufficient penalty points on their licence that they would be liable to a ‘totting up’ disqualification if further points were imposed. In these circumstances, unless the court is of the view that the offence should be marked by a period of discretionary disqualification in excess of the minimum totting up disqualification period, the court should impose penalty points rather than discretionary disqualification so that the minimum totting up disqualification period applies (see ‘totting up’).