The government has been urged to close the legal loophole which allows repeat offenders to escape driving bans, after a report by the Sentencing Council found that some courts were failing to consider a motorist’s driving history when issuing “short, discretionary” disqualifications, even when the driver had received 12 or more penalty points.
While drivers who amass 12 points on their licence within a three-year period should theoretically expect a so-called “totting up” ban of a minimum of six months, the Sentencing Council has raised concerns that magistrates are being “dangerously lenient” in allowing serial offenders to stay behind the wheel, the Sunday Times reports.
In October 2020, the Sentencing Council, part of the Ministry of Justice, issued guidance for magistrates which was intended to reduce the number of offenders with totting up offences who avoided disqualification.
However, a recent report by the council says that courts are too often imposing short, discretionary driving disqualifications – amounting to fewer than 56 days – to motorists who have received 12 or more penalty points.
> Are UK sentencing guidelines tough enough for motoring offences?
According to the report, some magistrates and legal advisors have suggested that courts are focusing on only the most recent driving offence rather than taking into account the previous 12 or more points that should, in theory, result in a ban of six months or longer.
The Sentencing Council says some magistrates have expressed “confusion” as to which points counted towards a totting up disqualification, creating what Cycling UK has branded a “loophole within a loophole”.
Cycling UK’s head of campaigns, Duncan Dollimore, said: “The Sentencing Council’s report shows we now have a loophole within a loophole. The result is people who should be facing six month or longer driving bans are continuing to pose a risk on our roads, often with fatal results.”
> Parliament urged to close 'exceptional hardship' loophole that lets motorists who go on to kill keep licences
While the Sentencing Council cannot enact legislative change and can only advise magistrates, Cycling UK has argued that – with evidence that the guidance appears to be failing – the government “must enact necessary legislation to keep all road users safe”.
“We still have courts treating inconvenience as exceptional hardship, and magistrates now giving a green light to another legal loophole,” says Dollimore.
“Given that magistrates aren’t carrying out assessments of risks when they make these decisions to allow someone to carry on driving, it’s time the law was changed to close this loophole and ensure that those who present a risk to others on our roads are removed from them.”
Dollimore continued: “For the past eight years we have been promised by successive ministers a review of Road Traffic Offences and Sentencing. This review, if it ever begins, could put an end to the fatal flaws, like the exceptional hardship loophole, in our current road safety legislation.”
Last year, a report published by the charity highlighted cases in which vulnerable road users were killed by motorists who had earlier managed to avoid being disqualified from driving after claiming that they would face “exceptional hardship” if they were banned.
Between 2011 and 2020, 83,581 motorists escaped automatic bans under the totting-up procedure after pleading mitigating circumstances.
> Texting driver who killed cyclist fails in appeal to have sentence reduced
One case highlighted by Cycling UK was that of 48-year-old father of two Lee Martin, who was killed in August 2015 by van driver Christopher Gard while riding his bike on the A31 in Hampshire.
Gard, who was driving at 65mph and texting at the wheel, had escaped a driving ban just six weeks beforehand after amassing 12 penalty points in the space of 12 months, all related to using a mobile phone at the wheel.
The driver, who had other convictions for mobile phone use but had repeatedly been allowed to keep his licence, was jailed for nine years for causing the death of Mr Martin by dangerous driving.
“Exceptional hardship is not losing the right to drive, exceptional hardship is what families such as Louis McGovern’s and Lee Martin’s have to face when their loved ones do not return home,” Dollimore said today.
“Exceptional hardship is when the courts put the retention of someone’s licence to drive above the safety of other road users. Exceptional hardship is when the courts allow irresponsible people to carry on driving until they cause further harm or death on the roads.
“The law as it is, does not deliver justice and fails to reduce danger on our roads. For more than eight years the government has recognised our road traffic laws failing – it’s about time they brought in their much-needed change.”
Responding to the Sentencing Council’s report, the Magistrates’ Association said it took “road safety very seriously”, arguing: “Every year around 550,000 motoring cases are tried in magistrates’ courts, with a conviction rate of over 98 percent. Of these, a very small proportion will be exceptional hardship cases.”
The Sentencing Council has said that it is currently consulting to clarify that “where an offender may cross the 12-point threshold, a ‘totting-up’ disqualification (minimum six months) should be imposed and not a shorter discretionary disqualification”.
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20 comments
Cyclists are never victims- if they're KSI'd it was their own fault
"The Sentencing Council says some magistrates have expressed “confusion” as to which points counted towards a totting up disqualification, creating what Cycling UK has branded a “loophole within a loophole”."
Surely points is points? how can certain points have less weight than others? If a driver has 3 point for speeding and another 6 for using a phone, thats 9 points for negligent driving!? Or am I missing something?
I agree - but on this very forum we have had philosophers / top lawyers questioning whether red lights are "established" or not. So I suspect it's a case of "if it's in the court forget what happened - you're now playing a totally different game".
It's almost as if magistrates have never heard of legs, bicycles, taxis, buses or trains. That's how people who don't have a licence get around. It's not exceptional hardship to use them. Sometimes inconvenient, but not a hardship.
And conversely, they don't consider it to be exeptional hardship to be endangered/hurt when cycling.
Lifetime driving bans should be considered for the most extreme motoring offenders.
"One case highlighted by Cycling UK was that of 48-year-old father of two Lee Martin, who was killed in August 2015 by van driver Christopher Gard while riding his bike on the A31 in Hampshire."
If anything, Gard has proven he does not learn from experience. Why should he ever be allowed behind the wheel again?
Cyclists have got it all wrong complaining to the Met on the issue of road laws.
It looks like the best way to get the Met to act is to 'misgender' someone on Twitter, or post a meme about Transgenders. The UK police will act then.
With the benefit of experience I have a very simple view on this topic. I was hit from behind in February by a driver who already had 30 points on his licence.
12 points is 12 points, get them on your license and you get a ban along with an extended test before you are allowed to drive again - SIMPLE.
When you get to 9 points be sure to drive very carefully, because you know what will happen when you get to 12 points.
OR
Claim excessive hardship (Lose my job, Dependent Relatives, School run, Buy catfood, etc.)
But you knew all that when you had 9 points.
The magistrate who granted my driver's excessive hardship appeal simply gave him the OK to injure a vulnerable road user - ME!
How does a Drver with 30 points get insurance anyway?
What happened to the driver?
I was very lucky, I just got hit by the driver's wing mirror which brought me off, but with no serious injuries, although I did need to go to A&E the next day. (Strange what cyclists think is lucky) There was no damage to the bike. No serious injury, No damage, No insurance claim.
The driver stopped and was subsequently prosecuted, but failed to attend court, so was found guilty in his absence.
As a witness I have not been advised of the sentance he received, but I suspect he's still driving, with or without a ban.
Glad to hear that you are ok. Have you checked court records to find out what sentence they got?
Argh! I hate this kind of thing. It's almost enough to make you break out the comparisons to actual oppression. It's very poor legal fudge to save a tiny bit of police time IMO. I could (barely) tolerate this in cases where there is no collision / crash. In cases like this I think it warrants someone like Cycling UK to mount a challenge. Not a lawyer though...
Thanks - It's good to know you share my frustration.
What do you have to do to be a victim?
Be a driver or a pedestrian, not a cyclist.
Hope you were able to claim off his insurance, for our sake as well as yours.
These are serial offenders, who even though they have seeming desperate reasons for needing to drive, and even though they have already been caught driving badly and been awarded points for these infractions, continue to drive badly and even dangerously.
Indeed. It should make the magistrate think "how stupid does this person need to be that, despite needing to drive so desperately, and despite being caught multiple times, they are still driving dangerously and have once again been caught for it? And given how utterly stupid that person must be, do we really want this person behind the wheel on our roads?"
Sadly, a lot of it comes down to the magistrate avoiding a possible appeal, especially if sentencing guidelines allow a lenient sentence.
Tightening up the sentencing guidelines sure would go a long way.
And there is always the fact that actually getting caught is near impossible.
In the recent consultation on sentencing guidelines for motoring offences that closed last week there appeared to be no concept of allowing reduction due to exceptional hardship. Mitigation should not include things relating to the personal life of the defendent. https://www.sentencingcouncil.org.uk/wp-content/uploads/Motoring-consult...
Cycling UK right on the money as usual. The fact that magistrates consider the convenience of drivers to be more important than the safety of the public is a scandal, and should be immediately addressed by the government*.
"Dollimore continued: “For the past eight years we have been promised by successive ministers a review of Road Traffic Offences and Sentencing. This review, if it ever begins, could put an end to the fatal flaws, like the exceptional hardship loophole, in our current road safety legislation.”
"...if it ever begins,....." Summing up the laissez faire approach of pretty much all authorities over the past fifty years to vulnerable road users being killed; who cares if it's only cyclists and pedestrians? They've had eight years to implement this multipally promised measure, but they haven't even started.
*government? What government?