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news
Big Ben © Simon MacMichaelParliament urged to close 'exceptional hardship' loophole that lets motorists who go on to kill keep licences
A cyclist and a motorcyclist are among road users killed in recent years by motorists who had been allowed by courts to keep driving after persuading them that 'exceptional hardship' would ensue if they lost their licences – a loophole exploited by more than 8,000 motorists each year according to Cycling UK, which says the Police, Crime, Sentencing and Courts Bill currently before the House of Lords affords an opportunity to close that loophole.
Following a Freedom of Information request to the DVLA, the charity found that between 2017-21, a total of 142,275 motorists in England – an average of 35,569 each year – were disqualified from driving under the so-called “totting-up” procedure, ie amassing 12 or more penalty points during a three-year period.
But a Parliamentary question from Labour peer and road safety campaigner Lord Berkeley found that from 2011-20, there had been 83,581 cases of motorists escaping a ban after pleading mitigating circumstances – equating to more than one in five of the total who amass 12-plus points each year being allowed by the courts to continue to drive.
He said: “Exempting one in five drivers is wrong. It should be one in five hundred.
“At present, anyone who can afford a loophole lawyer can join the 85,000 drivers who get off.
“A better alternative would be for drivers to think of the consequences before they break the law.”
A report published by Cycling UK has 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.
One 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 in August 2015.
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.
> Texting driver who killed cyclist fails in appeal to have sentence reduced
Another case involved Louis McGovern, aged 30, who was killed as he rode his motorbike home from work in Stockport in January 2019 when he was struck by van driver Kurt Sammon, who had also been texting and making a phone call while driving shortly before the crash.
Sammon, aged 55, had been imprisoned for six months in 2004 for killing a 13-year-old schoolboy. He had no insurance or MOT at the time of that fatal crash and also failed to stop or report it.
Yet three months before killing Mr McGovern – he would later be jailed for seven years for causing death by dangerous driving, with a prosecutor at trial saying he had on of the “worst driving records I've ever seen” – magistrates had allowed him to keep his driving licence after he had reached 12 points, with the motorist convincing them that losing it would affect his car valeting business and prevent him from caring for his mother.
In a letter to North Cheshire magistrates, Mr McGovern’s father Mark asked why, given Sammons’ prior history, they had allowed the driver to keep his licence.
In reply, the magistrates said: “No formal risk assessments are carried out, however magistrates are made aware of the details of any endorsements that are on an individual’s driving licence, though it doesn’t include details as to the facts of those cases.”
Duncan Dollimore, Cycling UK’s head of campaigns, said: “We’ve got courts treating inconvenience as exceptional hardship and a legal loophole that costs lives is making a mockery of the supposedly automatic totting up ban.
“We’ve no assessment of risks when magistrates make these decisions to allow someone to carry on driving, but they are accepting bland assertions that losing a licence will cause them difficulties.
“It’s families such as Louis McGovern’s and Lee Martin’s who really suffer exceptional hardship when the courts put the retention of someone’s licence to drive above road safety, allowing irresponsible people to carry on driving until they cause further harm or death on the roads,” he added.
Cycling UK, which is campaigning for the loophole to be closed, has put in place an online action enabling people to write to their MPs “#encourage them to take action to help fix our failing traffic laws.”
Simon joined road.cc as news editor in 2009 and is now the site’s community editor, acting as a link between the team producing the content and our readers. A law and languages graduate, published translator and former retail analyst, he has reported on issues as diverse as cycling-related court cases, anti-doping investigations, the latest developments in the bike industry and the sport’s biggest races. Now back in London full-time after 15 years living in Oxford and Cambridge, he loves cycling along the Thames but misses having his former riding buddy, Elodie the miniature schnauzer, in the basket in front of him.
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24 comments
If collecting 12 points and getting a ban would cause you exceptional hardship, that's pretty much the point. It's supposed to cause you hardship. It's supposed to be a punishment and a deterrant.
If you've got 6 points don't commit and offence that would get you another 6 points, if you've got 9 points don't commit an offence that would get you another 3. Simple.
It's one of those "but it's not real crime" issues, isn't it? Or it's like an "accident" - it's just bad luck you got caught because everyone does it*- so it could be me next.
There's no other explanation I can think of. So the reticence is half "cruel and unusual punishment" and half "but won't you think of the children / poor old grandma / person's spouse who would be impacted through no fault of their own?"
If you don't see that - consider - we don't seem to have such issues with imposing:
* How can you avoid occasional speeding when keeping to the MSL (minimum speed limits) so as not to inconvenience other motorists? We teach it - "making progress" was emphasised by my otherwise extremely pedantic and careful driving instructor back in the day.
Or it's like an "accident" - it's just bad luck you got caught
Thats the thing that gets me. Like, it's really hard to get caught using your phone at the wheel. For the guy above who was caught often enough to get 12 points in one year and for it to be the 5th time he'd racked them up he must have been on his phone constantly. For every single moment he was driving, enough to have racked up thousands of points if he'd been caught every time.
Hiw he was able to claim hardship more than once - with clear and unambiguous evidence that his behaviour had not changed a bit since the last time - is unfathomable to me.
Yeah. I know what you mean about the "unlucky". Although the law generally closes its eyes to that which isn't proved to its standards the rest of us can surmise... that this is a clear sign of an individual repeating the offense constantly and unlikely to change without something more happening. Bit like the Katy Price story - we're stuck just waiting for the literal and metaphorical crash before the law will step in.
Maybe the mistake is thinking that the law is there to "fix the problem specified" rather than "keep most people from taking their complaints out on the authorities or directly on those they feel aggrieved by"?
Try again:
https://www.cyclinguk.org/sites/default/files/document/migrated/news/111...
I was under the impression that it was one of the things that that 'gentleman' took advantage of on behalf of his wealthy clients...
(Mr Loophole - the clue's in the name)
Your link (removed from the quote above to protect the innocent) goes to some used toilet paper, whose odorous cookie policy expects me to jump through hoops to stop it from laying its little flea eggs everywhere. I shan't be going there. Use a proper newspaper, like the Guardian:
When you base your career on the differentiation between morals and ethics, we know all we need to know about both your morals and your ethics. For what it is worth, I firmly agree that everybody should have permitted a competent defence in court. I don't need to find the difference between morals and ethics for that: it is both. But when he campaigns against the things he is defending, he has lost all credibility. The Daily Mail is a fitting place to find his sophistry.
Top lawyer and road safety expert Nick Freeman should stop scratching the wound if he really wants it to heal. Meanwhile, he can kiss my hairy 4r5e.
As for CyclingUK being late to the party, this briefing note is more than 4 years old, and I doubt it was CyclingUK's/CTC's first critical mention of exceptional hardship. And this representation to Parliament is from 2010 (see p203 para 24 referring to drivers with 30 points).
Problem is, too many motorists (and magistrates) are of the opinion that "exceptional hardship" means "I might have to get the bus"...
or [clutches pearls] get on a bike with the road lice
I think the PC term is lycrist infiltrator
I'd just like to thank Cycling UK for at least trying to get something done. It's campaigns like this which persuaded me to join up and contribute to their "Cyclist's Defence Fund". It's very diffficult to take on the establishment as an individual and we need a body that will represent people who want to use our roads safely to get around without polluting the planet and causing congestion. You'd think it would be a no brainer but it's turning out to be an uphill struggle.
'exceptional hardship'
Like not being able to take out your elderly mother's bins, or depriving your grandchild of your company on their birthday, or not being able to go for a bike ride because you're dead.
The law is an ass, and loophole lawyers exploit that weakness for their client's money, and never mind the victims. But hey, it isn't drivers who are being discriminated against, so the government will get around to it in a decade or two; meanwhile, here's a few paragraphs that no-one will read in the Highway Code.
Cycling UK need to go further.
The 12 point loophole needs to be closed but a handbrake needs applying to those with 6 or more points for speeding.
My suggestion is that those with 6 or more points for speeding (or two or more speeding offiences in any three year period):
- should be prevented from driving for commercial purposes
- should be required to have a black box fitted to any vehicle they drive for a period of 3 years to force a change in driving behaviour at the risk of receiving further automated penalties if they speed in that time.
Black boxes all round, if you ask me.
Black boxes all round, if you ask me.[/quote
(Where they can be bothered) police can get data from modern cars already, until the courts do something with it then retrofitting black boxes will achieve very little.
https://news.sky.com/story/sheffield-racing-drivers-avoid-jail-after-des...
I guess it would probably need an app to get fine-grained detail but a mobile device already can be tracked / has an accellerometer in it, no? Pretty sure police can already get tracking / location data when they need it.
...although seeing the paranoia about "chips in the vaccines" maybe it would bring down society (or at least cause a back-bench rebellion) if you mention to people that they can already be tracked - albeit in hindsight? (Update - we already get have powers to use data - although anonymous - for covid tracking). Also given the creative use made of the anti-terror legislation you can have full confidence any further data-collection abilities would be abused...
Actually it looks like it's already there but that there's a lack of standards. How peculiar...
The amount of data stored by phones and cars is vast and as usual the legal process of how authorities can legitimately make use of such modern technology lags behind. The uncomfortable truth is that the data is there and accessible.
I agree in principle, however when the police refuse to act on proper video evidence provided by victims of intimidation, why would they act on BB evidence?
I think compulsory black-boxing for insurance would potentially be more effective than punishment via the courts. Insurance companies would quickly make it very expensive for people who routinely break speed limits/brake/accelerate excessively/generally drive like asses. While I appreciate that there's the issue of 'one rule for us, another for the rich', that's already the case with lawyers!
No, good point! there's more ways than one to skin a cat.
Actually that's becoming more attractive the more I think about it
Wild idea...what if these "black boxes" limited the speed of the vehicle to the local speed limit as with electric scooters?!?!?!?!??
In fact what if all UK registered cars were mechanically and electronically limited to a maximum speed of 70mph no exceptions? I mean, it'd make zero difference as all drivers are law abiding anyway.
I remember having a conversation about this about 20y ago, when in-car satnavs were becoming available - you remember when it was about the size of a car radio, and needed a CD for the maps?
My erstwhile friend was genuinely horrified - "what 'appens when your wife's pregnant and you need to get her to hospital, eh??"
I must confess, I really, truly had no sensible answer....
And those that drive most dangerously or found it too expensive just wouldnt bother with insurance at all. There are an estimated (and it's a deliberately low estimate) 1million uninsured drivers your black box idea wouldnt impact at all.
Like for instance this chap https://www.mirror.co.uk/money/driver-fined-10000-after-racking-25663017 who racked up 98points on his licence by speeding every day for a month last year. Just fined 10,650 and only banned from driving for a year, then was fined 800 pounds because he wasnt insured.
Do you think drivers like him would be fitting a black box to their vehicles ?
True , it just goes to show that somewhere along the line you have to legislate and enforce.