In the case of R v Needham and others [2016] EWCA Crim 455, the Court of Appeal has considered the effect of sections 35A and 35B of the Road Traffic Offenders Act 1988 on individuals who are disqualified from driving and have a custodial sentence imposed at the same time.

The relevant legislative provisions came into force on 13 April 2015 and, in broad terms, they did not apply to offences committed before that date. The application of the provisions relate to situations where a person was to be disqualified from driving either under the section 34 of the Act (disqualification for specific offences) or section 35 of the Act (disqualification under the ‘totting-up’ provisions).

The Court of Appeal held that the purpose of the legislation was to avoid offenders who were disqualified from diving and had a custodial sentence imposed at the same time, serving all of part of their disqualification whilst in custody. It pronounced that the clear intention of parliament is that such periods of disqualification should be served by an offender whilst he or she is at liberty in the community.

Section 35A of the Act applies when an individual is to be disqualified from driving. In those circumstances, the order of disqualification comprised of a ‘discretionary’ disqualification period and the appropriate ‘extension’ period.

Section 35B of the Act came into play, in addition to section 35A, where other offences were involved. Where section 35B applied, in determining the length of disqualification, the court had to have regard, if and to the extent that it was appropriate to do so, to the diminished effect of disqualification as a distinct punishment on a person who was also detained pursuant to a custodial sentence.

For the use of judges and practitioners, the Court set out a checklist of steps as to the approach to be followed under the two sections, with conclusions setting out an appropriate way of making the formal sentencing announcement.

Step 1:

Does the court intend to impose a “discretionary” disqualification under sections 34 or 35 of the Act for any offence?

If YES —go to step 2

 Step 2:

Does the court intend to impose a custodial term for that same offence?

If YES then section 35A applies and the court must impose an ‘extension period’ for that same offence and consider step 3.

If NO then section 35A does not apply at all and the court must consider section 35B and step 4.

Step 3:

Does the court intend to impose a custodial term for another offence (which is longer or consecutive) or is the offender already serving a custodial sentence?

If YES then consider what increase (“uplift”) in the period of “discretionary disqualification” is required to comply with sections 35B(2) and (3). In accordance with section 35B(4), ignore any custodial term imposed for an offence involving disqualification under section 35A.

Discretionary period + extension period + uplift = total period of disqualification

If NO then there is no need to consider section 35B at all.

Discretionary period + extension period = total period of disqualification

 Step 4:

Does the court intend to impose a custodial term for another offence or is the offender already serving a custodial sentence?

If YES then consider what increase (“uplift”) in the period of “discretionary disqualification” is required to comply with sections 35B(2) and (3).

Discretionary period + uplift = total period of disqualification

The step by step guide for judges should ensure that the legislative provisions are enforced consistently by the courts and the intention of Parliament, namely to avoid offenders serving their disqualification period whilst in custody, is upheld.