The majority of driving offences carry penalty points. If your license is endorsed with points, the points remain ‘active’ for three years, and if you commit any further endorsable offences within this three year period, the points for the later offences are added to any ‘active’ points already on your license to give a total. If the total number of points on your license is equal to or greater than 12, under the ‘totting up’ provisions contained within s35 Road Traffic Offenders Act 1988 (RTOA 1988), the court must order you to be disqualified from driving, unless the court is satisfied that there are mitigating circumstances.
In this article, we look at how you could avoid a driving ban under s35.
For how long would a ban under s35 last?
Section 35 RTOA 1988 states that a ban must last “for not less than the minimum period”, unless mitigating circumstances apply.
The length of the minimum period depends on whether the driver has received a driving ban (lasting for at least 56 days) in the three years before the date the latest offence was committed:
It should be noted that these are only minimum periods – the court may, if it considers a lengthier ban to be more appropriate, order that the driver be banned from driving for a period exceeding the minimum periods outlined above.
If a ban is received under s35, the effect of the ban is to ‘wipe the slate clean’ as regards penalty points – any penalty points which triggered the ban will not be counted by the court in future proceedings. However, as is shown by the above, the fact that a ban has been ordered will be taken into account by the court when considering the minimum period in relation to future bans.
How can a ban be avoided?
A ban under s35 can be avoided if:
“the court is satisfied, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction and thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified.”
In short, if the driver can show that there are “mitigating circumstances”, he may be able to avoid a disqualification (or shorten the length of the disqualification).
Mitigating circumstances under s35 are very different to “special reasons” under s34 (relating to obligatory disqualification) in that mitigating circumstances can relate to either the offender or the offence, whereas special reasons can only relate to the offence.
Despite the broad phrasing of s35(1), s35(4) states that the following circumstances cannot amount to mitigating circumstances:
It follows that, in practice, most of the mitigating circumstances raised in court relate to exceptional hardship. The most common argument relates to employment: if a driving ban would be likely to cause the driver to lose his job (because a license is required to travel to work, or because the job involved driving, for example) this could form the basis of a strong exceptional hardship argument. The court is likely to consider the effect of the ban on the driver’s family (and, if the driver is a businessman, the effect on any dependent employees). The court will, however, consider whether alternative means of transport would be available to the driver, and will also consider whether driving is actually necessary for the driver’s job.
The burden is on the driver to persuade the court that mitigating circumstances apply in the context of the case, and the court may require evidence to be presented if the matters raised do not fall within the court’s knowledge. Considerable expertise is required to persuasively present this information: the court must be satisfied that the hardship is ‘exceptional’ if it is to have any room for manoeuvre under s35.
Different rules for newly qualified drivers
Although separate from s35 RTOA 1988, a slightly different system operates in respect of newly qualified drivers.
Under the Road Traffic (New Drivers) Act 1995, a “probationary period”, lasting for 2 years from the date the driving test was passed, applies to all new drivers. During this period, if the driver obtains 6 or more penalty points, the court will automatically revoke the driver’s license.
If the license is revoked during the probationary period, the driver must reapply for a driving license and must retake an ‘ordinary’ driving test before being awarded a full license. It should be noted that, after the retest, no new probationary period exists. However any penalty points obtained during the probationary period remain ‘active’ for 3 years from the date of the commission of the offence(s) and will be carried over to the new license. Obtaining a further 6 points would, therefore, make the driver liable for disqualification under the s35 scheme outlined above.
If you face disqualification under the s35 ‘totting up’ procedure, please contact us for a free consultation. In the case of R v W , Mr W was caught doing 99mph in a 70mph limit. He already had 9 penalty points on his license, and so faced the prospect of a 6 month disqualification which would have caused him to lose his job, causing his family to suffer severe hardship. Following a free consultation with one of our expert barristers, the persuasive submissions we made on his behalf resulted in him avoiding disqualification altogether. Without our expertise Mr W may not have been able to persuade the Magistrates that his hardship was ‘exceptional’, and may not have been able to avoid a ban.
The contents of this article should not be relied upon in isolation. Each case is fact specific and this article should not be treated as legal advice or as a substitute for legal advice.
 s35(1) RTOA 1988
 See our discussion of special reasons here: https://www.roadlawbarristers.co.uk/2016/04/obligatory-disqualification-special-reasons/