Family Law AssociationThe Law Society of Scotland
Glasgow 0141 375 1222

Totting Up Lawyers Glasgow & Scotland

For some, getting a couple of points on your licence may seem insignificant. However, because of the totting-up procedure, this could lead to much more serious consequences. The maximum amount of penalty points you are allowed on your licence is currently 12. If you get 12 points within 3 years, you’ll be disqualified from driving. This acts as a kind of warning from committing repeat offences. Even if you are guilty, with the help of an road traffic lawyer , you have more options than you think. 

WHAT IS THE LAW?

Section 35 of the Road Traffic Offenders Act 1988 says that where someone is convicted of an offence involving an endorsement (of penalty points) and the total number of active points on their licence adds up to 12 or more, the Court must disqualify them. For example, if you received 8 points for driving without insurance in 2014 and a further 5 in 2016 for failing to report an accident, you will be disqualified. The disqualification period must be for the minimum of 6 months. If you have previous disqualifications, the period may be higher depending on how many there are.

CAN I PREVENT DISQUALIFICATION?

  1. I. THE EXCEPTIONAL HARDSHIP DEFENCE

The Court is able to let you off without disqualification. The law also allows them to impose a shorter ban in appropriate circumstances. This will be a fixed period of a time less than 56 days.

The exceptional hardship defence means that there is something about your personal circumstances which would make it unfair to disqualify you for the usual minimum period or indeed at all. If being unable to drive would result in the collapse of your business, for instance, this could be argued as an exceptional hardship. The Court are very particular as to what they will accept though.

The definition of ‘exceptional’ is something that is ‘out of the ordinary’. There are no definitive rules as to what counts, and the outcome is completely dependent on what happens in court. The test itself is not very high, with the accused having to prove their case on the balance of probabilities (i.e. that it’s more probable than not that you are right). However, Scotland has always been quite strict with it. While the hardship may feel personally exceptional, Scottish Courts have always been more lenient when the hardship affects a 3rd party. For example, your driving licence allows you to care for a dependent relative, so losing your licence would be detrimental to them as well as you. Despite this, considering the current economic climate the Court have also ruled that things like personal financial reasons may also be more likely to succeed than previously.  

  1. II. THE SPECIAL REASONS DEFENCE

Where the exceptional hardship defence relates to a circumstance of the offender, the special reasons defence must relate to something to do with the offence itself. In certain circumstances the Court does not have to disqualify or endorse penalty points for the offence if there was a ‘special reason’ for committing it. it can also allow the reduction of the statutory minimum disqualification period, similar to the exceptional hardship defence.

It must be noted that unlike the option to reduce the disqualification period, the Court do not have the option to simply reduce the number of penalty points endorsed. They can either give the full number of points or give none at all.

What is a special reason? A common example is where an urgent and unforeseen medical emergency results in you breaking the speed limit. Another is where the driver seeks to rely on the assurance from the owner of a vehicle that they were insured to drive, particularly in an employment context. It is also possible to argue that you were facing an imminent threat of violence or injury which caused you to commit a driving offence. For this though, the driving involved cannot continue past the point at which the danger stops.

Sometimes, your lawyer will start off by arguing this ‘circumstance’ as a full defence. There is often a fine line between special reasons and defences. If the Court still makes a finding of guilt, you can present it again as a special reason in an attempt to reduce your sentence. It is for you as the accused to prove the legitimacy of your special reason on the balance of probabilities. These defences are not perceived lightly by the Court. There is a difficult balance to be struck between public safety in general and the fairness of the penalty on the accused. The Court always look to what the accused’s options were at the time they committed the offence. If there was an alternative option possible then they will not be easily persuaded.

This is an extremely fact dependent defence with lots of varying past decisions. Seeking legal advice as soon as possible is vital.

WHAT ARE THE CONSEQUENCES?

  1. I. WHAT YOU NEED TO KNOW ABOUT PENALTY POINTS:

Section 29 of the Road Traffic Offenders Act outlines which penalty points can be taken into account by the Court for the totting up procedure. Offences that have resulted in the endorsement of penalty points committed more than 3 years before a new offence, will be discounted. You can calculate how many live penalty points you have by using an online driving licence checker.

With penalty points, timing is everything. It is important to know that it is the date of the offence upon which the 3-year timer will start until the relevant points are discounted again. Not the date of conviction or the endorsement. Going back to the earlier example, if you are charged with failing to report (5 points) even 2 years and 51 weeks after you receive the first 8 points, you will still face disqualification. Delaying the court date by a week won’t help, as the date of the offence is the only relevant one.

If more than one offence is committed at the same incident, the rules are slightly different. The Court must think about the number of points they would endorse for each offence. They must then look to which offence has the highest number of points, and endorse that as punishment. if you get stopped for having worn tyres (a possible 3 points) but also driving without insurance (a possible 8 points), you would be endorsed with 8 points as that is the higher of the two. The Court does however have the power not to bind itself to this rule in very exceptional circumstances. This means that if the offence/s are particularly serious then you could receive points for all of them individually.

If disqualified under the totting-up procedure, your licence is wiped of those 12 points so that afterwards, you will return to driving with a clean licence. Although the points disappear off your licence after 3 years, they remain on the counterpart licence for 4. They can be completely removed after 4 years by notifying the Driver and Vehicle Licensing Agency (DVLA).

  1. II. WHAT YOU NEED TO KNOW ABOUT THE DISQUALIFICATION PERIOD:

You may be wondering how a totting-up ban is different to a discretionary ban (where you are banned as a penalty to a single offence). The difference is just that. The discretionary ban is aimed at a single offence whereas a totting-up ban comes as a result of reaching the 12-point threshold. The period of ban for a discretionary ban depends on the nature and seriousness of the offence. In addition, when you return to driving, the points you had received up until that point will still be on your licence. This is not the case with a totting-up ban.

Recently, the Court has been more likely to give out a short-term disqualification rather than the standard 6-month one. If you are facing disqualification under the totting-up procedure, then this is a very favourable outcome. For this to happen, exceptional hardship must be found.

How long you are disqualified for and indeed whether you are disqualified at all completely depends on the preparation and presentation of your case. The amount of evidence in support of your argument makes a huge difference. This is why having a lawyer onside is greatly beneficial. For example, if you manage to successfully argue the exceptional hardship defence, sometimes you will get off without even being disqualified, and simply having your licence endorsed with points. There are cases where people are still driving with the likes of 20 points on their licence, all because their exceptional hardship argument was sufficiently persuasive.

PREPARING YOUR TOTTING UP CASE 

In order to succeed in any defences, your case must be persuasive and your evidence strong. To do this, all submissions should be sufficiently backed up and witnesses should be called upon.

It usually takes around 2 months to properly prepare a case for proof. The Court will, however, usually allow reasonable extensions to make sure that you have been given a fair amount of preparatory time.

Take the First Step Now: Get Legal Advice

Invalid Input
Invalid Input
Invalid Input
Invalid Input
Invalid Input