The government has been urged to close the legal loophole which allows repeat offenders to escape driving bans, after a report by the Sentencing Council found that some courts were failing to consider a motorist’s driving history when issuing “short, discretionary” disqualifications, even when the driver had received 12 or more penalty points.
While drivers who amass 12 points on their licence within a three-year period should theoretically expect a so-called “totting up” ban of a minimum of six months, the Sentencing Council has raised concerns that magistrates are being “dangerously lenient” in allowing serial offenders to stay behind the wheel, the Sunday Times reports.
In October 2020, the Sentencing Council, part of the Ministry of Justice, issued guidance for magistrates which was intended to reduce the number of offenders with totting up offences who avoided disqualification.
However, a recent report by the council says that courts are too often imposing short, discretionary driving disqualifications – amounting to fewer than 56 days – to motorists who have received 12 or more penalty points.
According to the report, some magistrates and legal advisors have suggested that courts are focusing on only the most recent driving offence rather than taking into account the previous 12 or more points that should, in theory, result in a ban of six months or longer.
The Sentencing Council says some magistrates have expressed “confusion” as to which points counted towards a totting up disqualification, creating what Cycling UK has branded a “loophole within a loophole”.
Cycling UK’s head of campaigns, Duncan Dollimore, said: “The Sentencing Council’s report shows we now have a loophole within a loophole. The result is people who should be facing six month or longer driving bans are continuing to pose a risk on our roads, often with fatal results.”
While the Sentencing Council cannot enact legislative change and can only advise magistrates, Cycling UK has argued that – with evidence that the guidance appears to be failing – the government “must enact necessary legislation to keep all road users safe”.
“We still have courts treating inconvenience as exceptional hardship, and magistrates now giving a green light to another legal loophole,” says Dollimore.
“Given that magistrates aren’t carrying out assessments of risks when they make these decisions to allow someone to carry on driving, it’s time the law was changed to close this loophole and ensure that those who present a risk to others on our roads are removed from them.”
Dollimore continued: “For the past eight years we have been promised by successive ministers a review of Road Traffic Offences and Sentencing. This review, if it ever begins, could put an end to the fatal flaws, like the exceptional hardship loophole, in our current road safety legislation.”
Last year, a report published by the charity highlighted cases in which vulnerable road users were killed by motorists who had earlier managed to avoid being disqualified from driving after claiming that they would face “exceptional hardship” if they were banned.
Between 2011 and 2020, 83,581 motorists escaped automatic bans under the totting-up procedure after pleading mitigating circumstances.
One case highlighted by Cycling UK was that of 48-year-old father of two Lee Martin, who was killed in August 2015 by van driver Christopher Gard while riding his bike on the A31 in Hampshire.
Gard, who was driving at 65mph and texting at the wheel, had escaped a driving ban just six weeks beforehand after amassing 12 penalty points in the space of 12 months, all related to using a mobile phone at the wheel.
The driver, who had other convictions for mobile phone use but had repeatedly been allowed to keep his licence, was jailed for nine years for causing the death of Mr Martin by dangerous driving.
“Exceptional hardship is not losing the right to drive, exceptional hardship is what families such as Louis McGovern’s and Lee Martin’s have to face when their loved ones do not return home,” Dollimore said today.
“Exceptional hardship is when the courts put the retention of someone’s licence to drive above the safety of other road users. Exceptional hardship is when the courts allow irresponsible people to carry on driving until they cause further harm or death on the roads.
“The law as it is, does not deliver justice and fails to reduce danger on our roads. For more than eight years the government has recognised our road traffic laws failing – it’s about time they brought in their much-needed change.”
Responding to the Sentencing Council’s report, the Magistrates’ Association said it took “road safety very seriously”, arguing: “Every year around 550,000 motoring cases are tried in magistrates’ courts, with a conviction rate of over 98 percent. Of these, a very small proportion will be exceptional hardship cases.”
The Sentencing Council has said that it is currently consulting to clarify that “where an offender may cross the 12-point threshold, a ‘totting-up’ disqualification (minimum six months) should be imposed and not a shorter discretionary disqualification”.
Ryan joined road.cc as a news writer in December 2021. He has written about cycling and some ball-centric sports for various websites, newspapers, magazines and radio. Before returning to writing about cycling full-time, he completed a PhD in History and published a book and numerous academic articles on religion and politics in Victorian Britain and Ireland (though he remained committed to boring his university colleagues and students with endless cycling trivia). He can be found riding his bike very slowly through the Dromara Hills of Co. Down.