An article published by the BBC News website on 23 February 2017 identified a motorist that is lawfully in possession of his driving licence and lawfully entitled to continue driving despite having amassed 62 penalty points within the relevant period. The motorist concerned, from West Yorkshire, is just one of the quoted number of 10,000 individuals nationwide who have accumulated 12 or more penalty points on their driving licence within 3 years and continue to lawfully drive.

Section 35 of the Road Traffic Offenders Act 1988 stipulates that any driver who accumulates twelve or more penalty points within a three year period is liable to a driving disqualification for a minimum period of six months. Such a disqualification can be reduced, or avoided altogether, if the court is satisfied (on the balance of probabilities), in all the circumstances, that there are grounds for mitigating the normal consequences of the conviction.

‘Exceptional hardship’ is one of the grounds for mitigating the normal consequence of such a driving disqualification. However, it is well-established and recognised that every driving disqualification is likely to result in some form of “hardship” for the offender. Therefore, the law verifies that it is only hardship of an exceptional nature that will satisfy the applicable threshold to avoid, or reduce, the minimum term of a driving disqualification prescribed by law. The burden of proof in demonstrating exceptional hardship is placed on the offender, on the balance of probabilities, and it will be for the court to determine each case on its individual merits, taking into consideration all of the circumstances.

So what will constitute ‘exceptional hardship’? There is so definitive answer since there is no legal definition, it being acknowledged that each individual case will ultimately turn on its specific facts and merits. What may amount to ‘exceptional hardship’ for one individual may not be equally applicable to another. For example if both are self-employed and rely on their ability to drive for the purpose of their occupation, but one individual may have greater financial resources enabling them to utilise alternative means of transport such as taxis or hiring a driver.

What has been established over the years is that the hardship endured must be something “out of the ordinary” and “reflect hardship of a serious kind”. The developments in case law over the years has established that more often than not, the Courts will have greater regard to the hardship that is caused to those other than the offender, who for whatever reason are reliant upon their ongoing ability to drive. Such a principle is established on the basis that those that are by definition ‘innocent’ should not be punished or penalised as a result of the wrongdoing by the offender.

Once a particular reason has been advanced  as ‘exceptional hardship’, and accepted, whether individually or collectively, the same reasons cannot be deployed and relied upon in the following 3 year period in the event the individual concerned commits a further motoring offence and is back before the Court subject to such a disqualification.

Ultimately, exceptional hardship is not a defence and motorists should not rely upon such provisions to come to their rescue when committing driving offences resulting in the accumulation of 12 or more penalty points.