Obligatory Disqualification: Special Reasons

If a driver is convicted of an offence involving obligatory disqualification, the court must order that the driver is disqualified from driving for at least 12 months.  However, if the court concludes that there are “special reasons” arising from the facts of that individual case, the court has discretion to either (a) disqualify the driver for a period shorter than 12 months; or (b) not disqualify the driver at all.[1]

In this article, we look at what can constitute ‘special reasons’ for the purposes of s34(1) Road Traffic Offenders Act (RTOA) 1988.

To which offences does obligatory disqualification apply?

Schedule 2 to the RTOA 1988 sets out the court’s sentencing powers in relation to the majority of road traffic offences.  The offences listed below are a selection of those which involve obligatory disqualification:

• Causing death by dangerous driving
• Dangerous driving
• Causing death by careless driving when under the influence of drink or drugs
• Driving or attempting to drive when unfit to drive through drink or drugs
• Driving or attempting to drive with excess alcohol in breath, blood or urine
• Some cases involving a failure to provide a specimen for analysis or laboratory test

What constitutes “special reasons”?

As noted above, in cases where disqualification is obligatory, the court can decide not to disqualify (or to disqualify for a shorter period) if it is satisfied that “special reasons” are present in the facts relating to the offence.  It should be noted that the burden is on the defence to prove the existence of special reasons, on the balance of probabilities.

The leading case defining “special reasons” is Whittal v Kirby[2]: a special reason is a mitigating or extenuating circumstance relating to the facts constituting the offence, and which the court ought to consider when determining what sentence to impose on the defendant.  In some cases special reasons may arise from a failed defence to the charge, but this is not a requirement.  It is important to note that the special reason must relate to the facts of the offence and not to the offender: this contrasts with the ‘exceptional hardship’ arguments often advanced in ‘totting up’ proceedings, to which the offender’s circumstances are highly relevant.

One example of a special reason is where (in the context of a drink driving case) the defendant’s drink is ‘laced’ with alcohol or drugs.  Although the offence of drink driving has still been committed whether or not the drink was laced (on the basis that the defendant’s state of mind is irrelevant to whether he committed this particular offence) it is arguable that deliberately driving whilst under the influence of drink or drugs is less blameworthy than being tricked or deceived into driving whilst under the influence of drink or drugs: it is for this reason that the ‘lacing’ of a defendant’s drink can amount to special reasons.  Broadly speaking, the court must be satisfied that (a) the defendant’s drink has been laced; (b) the defendant did not know or suspect that his drink had been laced; and (c) if the defendant had not consumed the laced drink, his level of alcohol would not have exceeded the prescribed limit.[3]  Expert medical evidence is usually required in this type of case in order to prove (c).  This satisfies the Whittal test because the consumption of the alcohol is relevant to the facts constituting the offence: it is relevant to the offence rather than the offender.

Another example can arise in emergency cases: there are sometimes cases where a defendant breaks the law in an emergency situation, but the circumstances are not sufficiently serious to make out the defence of duress.  In such cases, it is possible for the emergency to amount to special reasons notwithstanding the failure of the defence of duress.  Broadly speaking, the court will not be convinced that special reasons exist if a reasonable man would have regarded the emergency as one which could have been responded to without needing to break the law: drink driving in order to respond to a burglar alarm which was sounding at a golf club a short distance away from the defendant’s house was not considered to amount to special reasons, because the defendant did not consider alternative methods of travelling to the golf club.[4]

It is important to emphasise the fact that these are only two examples of what can amount to special reasons.  The court’s determination is entirely fact-sensitive, and what constitutes special reasons in one case will not necessarily amount to special reasons in another case, even if it appears to be analogous.

Discretion

Even if the court considers that special reasons exist in a given case, this does not mean that the defendant will automatically benefit from a reduced period of disqualification, or from no disqualification at all.  The court’s power to respond to the presence of special reasons is entirely discretionary.

It was held in DPP v Bristow[5] that the court should only exercise its discretion where there is a real possibility that a (hypothetical) sober reasonable and responsible friend of the defendant who was present at the time of the offence (but was a non-driver) would have advised the defendant to drive.  In practice, this means that the court is likely to exercise its discretion only in “clear and compelling circumstances”: fanciful special reasons applications will not be entertained.[6]

Conclusion

It is important to note that different rules apply to offences involving discretionary disqualification, and also to cases where a defendant faces disqualification as a result of obtaining 12 or more penalty points.  In an example of the latter situation, R v W[7], Mr W was caught doing 99mph in a 70mph limit.  He already had 9 points on his license so faced disqualification which would have resulted in the loss of his job, and the suffering of his family.  As a result of our advice, and after receiving our powerful submissions in court, the Magistrates were persuaded that Mr W’s hardship was truly ‘exceptional’ and so Mr W was able to avoid disqualification.

We are more than happy to provide advice in relation to any road law case, so please call us today for your free consultation.

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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.