Taxi Driver Online

The penalty points system

C[5.10]–C[5.15]

Persons convicted of certain offences must be disqualified from driving, eg for driving with excess alcohol. A court has a discretion to disqualify any person who has been convicted of an endorsable offence and will do so where the particular offence with which it is dealing is serious. The person who persistently commits minor endorsable offences may therefore escape these mandatory or discretionary disqualifications but will be caught by the disqualification imposed under the penalty points system. This provides in essence that where a person accumulates 12 or more penalty points over a three-year period, he must generally be disqualified for a minimum period.

C[5.16]

Penalty points. Every endorsable offence attracts a number of penalty points varying from 2 to 11. Some offences (including careless driving, uninsured use of a vehicle and failing to stop or report after an accident) give the court a discretion to attach a number of penalty points within a range, so indicating the court's view of the relative gravity of the offence. The choice of the number of penalty points in these cases will on occasion determine whether a disqualification must be imposed. For example, Brian A Driver has already accumulated 8 penalty points and is convicted of careless driving for which anything from 3 to 9 penalty points may be awarded. If the court imposes 3 points, Driver escapes disqualification because he does not reach a total of 12; but if the court imposes more than 3 then he must be disqualified, subject to his proving mitigating circumstances amounting to exceptional hardship.

C[5.17]

When a driver is convicted of a single endorsable offence his licence will be endorsed with the number of penalty points appropriate to that offence, or with a number within the appropriate range. However, where he is convicted of a number of offences committed on the same occasion (which is not the same as saying on the same day) the number of points to be endorsed will usually be the number for the offence attracting the highest number. For example, if in addition to his careless driving conviction (3-9 penalty points) Brian A Driver is also convicted of driving whilst disqualified (6 penalty points) and driving in a play street (2 penalty points) then his endorsement will show at least 6 penalty points, that being the highest figure. If the court decides to endorse 8 penalty points for the careless driving (that being a number within the range for that offence) then the endorsement would show 8 penalty points. It is these 8 penalty points which count towards disqualification, not the total number for the three offences.

C[5.18]

Two things will be evident from this in the normal situation:

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(a) although every endorsable offence has a penalty points value, the endorsement relating to that offence may show a higher number; and
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(b) when a conviction relates to a number of offences committed on the same occasion the number of penalty points which count towards disqualification is the number relating to the offence with the highest number of penalty points.

C[5.19]

However, the court may if it thinks fit decide to accumulate the points for offences committed on the same occasion. If it does so it must state its reasons in open court and enter them in the register.

Note that the court should not order penalty points to be endorsed if it orders the offender to be disqualified in respect of any offence of which he has been convicted on that occasion (Martin v DPP [2000] RTR 188, [2000] 2 Cr App Rep (S) 18, 164 JP 405, [2000] Crim LR 320).
Penalty points to be taken into account

C[5.20]

There is a general misunderstanding as to the law and practice following the decision in Jones v Chief Constable of West Mercia Police Authority (2000) 165 JP 6. A totting ban is usually for not less than 6, 12 or 24 months which is substantially longer than the majority of discretionary bans. Accordingly, the starting point is to calculate the number of points to be taken into account and to determine whether the offender tots. As the court in Jones indicated the usual practice is to impose a totting ban without reference to the seriousness or triviality of the offence (as provided for by s 35 of the Offenders Act). Only in an exceptional case will the court first consider if it wishes to impose a discretionary disqualification bearing in mind the seriousness of the offence and previous offences. If a discretionary disqualification is imposed any existing points remain on the licence. If discretionary disqualification is not appropriate the court imposes points and goes on to consider the totting-up procedure.

Subject to there being grounds for mitigation, disqualification is incurred when the number of penalty points to be taken into account reaches or exceeds 12. The following penalty points are to be taken into account at the time of conviction:

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(a) those endorsed at the time of that conviction. Where a person is made the subject of a mandatory or discretionary disqualification no penalty points for the offence for which he was disqualified will be taken into account, for the purpose of imposing an additional disqualification under the penalty points provisions;
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(b) those endorsed previously in respect of any offence committed within three years of the present offence, except where a disqualification under the penalty points provisions has been ordered, in which case the court is only concerned with the penalty points incurred since that disqualification.

C[5.21]

Therefore, only a disqualification under the penalty points provisions will have the effect of 'wiping clean' any points previously incurred.
Period of disqualification

C[5.22]

Once a defendant becomes liable for disqualification under this scheme he may be disqualified for any period at the court's discretion, but this discretion is limited by the fixing of minimum periods. These minimum periods are as follows:

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(a) six months if no previous disqualification is to be taken into account;
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(b) one year if one previous disqualification is to be taken into account; and
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(c) two years if there is more than one such disqualification.

C[5.23]

For a prior disqualification to be taken into account it must have been imposed within three years of the latest offence which has brought the offender's total of penalty points up to 12. Such disqualification may have been imposed:

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(a) for an offence for which it was obligatory (eg driving with excess alcohol); or
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(b) for an offence for which it was optional (eg a bad case of careless driving); or
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(c) for 12 or more penalty points;

and must have been for a period of 56 days or more and was not imposed for stealing a motor vehicle, taking without consent or going equipped for theft.
Mitigating grounds

C[5.24]

When a defendant becomes liable to disqualification under this procedure he may claim that there are grounds for mitigating the normal consequences of conviction and if the court finds such grounds it may reduce the minimum period to which the offender is liable or it may decide not to disqualify. In either event it must state its reasons which will be recorded. The court's discretion, however, is limited. It may not take into account:

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(a) any circumstances which are alleged to make the offence (or any of them) not a serious offence;
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(b) the fact that disqualification would cause hardship (but it may take account of exceptional hardship);
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(c) any circumstances which have been taken into account during the previous three years so as to avoid or reduce disqualification.

The case of Miller v DPP [2004] EWHC 595 (Admin), [2004] 17 LS Gaz R 30, [2004] All ER (D) 477 (Mar) suggests that where there has been excessive delay (over 2 years) in sentencing the defendant this is a proper ground for reducing the length of a disqualification under RTOA 1988, s 35(1).

C[5.25]–C[5.30]

So, for example, Mr Zimmer is liable to disqualification but successfully avoids it by pleading that being disabled a disqualification would cause exceptional hardship because his specially adapted vehicle is his only means of getting to work. If he is convicted and attracts a totting disqualification again within three years he is unable to put forward that ground for avoiding disqualification but once three years have passed, that ground is resurrected and may be used again.

C[5.31]

Under the penalty points scheme only one disqualification is imposed irrespective of the number of offences. In the event of an appeal against any one or more of the offences, the disqualification will be treated as having been imposed on each offence and in any event the Crown Court has the power to alter sentences imposed by the magistrates' court for several offences even if there is only an appeal against the sentence on one offence.

C[5.32]

Summary. Upon conviction of certain offences the court must order endorsement unless either there are special reasons (although the Road Traffic Offenders Act 1988 uses the plural it has always been treated as the singular) for not doing so, or in the case of some offences under the Road Vehicles (Construction and Use) Regulations 1986, the defendant did not know of and had no reason to suspect the condition of the vehicle. These offences are noted in the table at C[1.6].

C[5.33]

No disqualification may be ordered unless it is for an endorsable offence (except for offences of theft, going equipped to steal vehicles and taking vehicles without consent). Some few offences carry a compulsory order for disqualification and this must be imposed by the court unless there are special reasons for not doing so.

C[5.34]

The term 'special reasons' has a very narrow meaning, in particular, hardship to the defendant is excluded from consideration.

C[5.35]

A period of disqualification takes effect immediately. This includes disqualification for 12 or more penalty points. Only one period of disqualification is ordered under the penalty points scheme irrespective of the number of offences. The three year period during which penalty points are to be counted runs between dates of offence, not conviction. The three year period during which, the circumstances once used as mitigating grounds for not disqualifying under the penalty points system may not be used again, is measured between dates of their original use and the present conviction.

C[5.36]

Where appeal against sentence is lodged, the court may suspend the effect of disqualification until the appeal is heard. This should not be done automatically but only after careful consideration.
Disqualification until passes a test

C[5.37]

The court must disqualify an offender until he passes an extended driving test where:

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(a) he is convicted of an offence of dangerous driving; or
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(b) in the Crown Court, the offences of manslaughter, causing death by dangerous driving or causing death by careless driving whilst under the influence of drink or drugs; or
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(c) the court orders him to be disqualified until a test of competence is passed, having convicted him of an offence involving obligatory disqualification under s 34 or he is disqualified under s 35 of the RTOA 1988.

C[5.38]

The court has a discretion to disqualify until an ordinary test of competence is passed where the offender has been convicted of any offence involving obligatory endorsement. The defendant is entitled to drive but must display L plates and be supervised. In cases where the court is exercising its discretion it must have regard to the safety of road users and an order is inappropriate as a punishment, but is suitable for the following cases:

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(a) for people who are growing aged or infirm, or show some incompetence in the offence which needs looking into. In addition a licence may be revoked by the Secretary of State on medical grounds and a provisional licence issued for the sole purpose of a road reassessment;
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(b) where the defendant is disqualified for a long period for the offence and there is doubt about his ability to drive at the expiry of the disqualification period;
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(c) where the manner of the defendant's driving suggests a threat to the safety of other road users (R v Miller (1993) 15 Cr App Rep (S) 505, [1994] Crim LR 231, CA). See the Road Traffic Offenders Act 1988, s 36;
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(d) it is not usually appropriate in the cases of passengers in vehicles taken without the owner's consent (R v Wiggins [2001] RTR 37, CA).

The onus is on the defendant charged with driving whilst disqualified when not having completed a retest to show he held a provisional licence and was complying with the conditions of that licence (DPP v Barker (2004) 168 JP 617, [2004] All ER (D) 246 (Oct), DC).
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