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Tuesday 19th April 2016

Totting Up and Discretionary Disqualification

If a motorist’s licence is endorsed with 12 or more penalty points the Court must consider a driving disqualification. Certain offences carry mandatory points. Often a speeding offence will carry 3 points, whereas driving without insurance will carry between 6 to 8 points.

Points may be accrued over a period of time and can be” totted up” in calculating whether the motorist has 12 or more points. A totting up ban results in a minimum of 6 months disqualification.

Some offences also carry a discretionary disqualification even in circumstances when the motorist has not accrued 12 or more points. A discretionary disqualification can result in a disqualification of any length.

What happens if a motorist is subject to both a totting up disqualification and a discretionary disqualification?

The issue came before the Court.

Mr. Jones was recently convicted of speeding. He had a bad record of similar offences, for he had been convicted of speeding on three prior occasions and his licence had been endorsed with 11 penalty points. That meant that, when the magistrates came to consider what penalty should be imposed on Mr. Jones, they were faced with a situation where he already had 11 penalty points to be taken into consideration on his licence.

The recent speeding conviction carried a minimum of 3 points so that under the "totting up" provisions the total would be over the number of 12 and the magistrates would be obliged to disqualify Mr. Jones for a minimum period of six months.

Could Mr Jones ask to be banned under the discretionary disqualification for a shorter period of time than 6 months under the totting up procedure?

When, as in the present case, the Court is faced with an offence that, in the normal process of the court's exercise of its jurisdiction, would or might attract discretionary disqualification but also the offence is an offence that carries penalty points which, when added to the outstanding points, would take the accused over the number of 12; should the Court apply the totting up provisions, or should it apply the discretionary disqualification provisions?

The Road Traffic Act 1991 made provision concerning the concept of "the penalty points to be taken into account on that occasion", applying both to discretionary disqualification under Section 34 of the Act and totting up disqualification under Section 35 of the 1988 Act.

An important preliminary to consideration of the point is that when considering whether to disqualify for an offence under Section 34 of the Act the magistrates should make that decision on the basis of the nature of the offence alone, without reference to any prior endorsements on the man's licence, and therefore without reference to his record.

What then, is the proper approach of magistrates when faced with a case such as the present where there is (on the surface, at least) a choice before them between a totting up disqualification and a discretionary disqualification?

The Court rejected the suggestion that Parliament intended that there should be two separate regimes of sentencing and two separate regimes of controlling road traffic behaviour. One was the totting up system, intended for an accumulation of offences, each one of which did not in itself, as committed, justify disqualification. The other was the system of discretionary disqualification outside the totting up system, where the consideration was and should only be whether the instant offence justified disqualification, and if so, for how long.

The Court held that the various provisions for disqualification run in parallel with each other and are not intended to be mutually exclusive. It would be very surprising if they were, because it would mean that in a case where a motorist has committed but one previous speeding offence the Court apparently could not consider the terms and the points awarded in respect of that offence in deciding what they should do on the second occasion.

Further, it is right to say that when Mr. Jones was disqualified on a totting up basis in this case, his offence was two-fold and attracted the attention of the Courts potentially in two ways: (1) his offence was the actual act of driving at 92 miles an hour, and the circumstances of that offence; (2) his offence was to repeat a category of behaviour that he had committed over the previous two and a half years.

The repetition was one aspect of the seriousness of his conduct, looked at overall. The facts of the instant offence were another aspect. Those will be the circumstances of many motoring offences.

The first step the magistrates must take is to decide that whether they should impose a discretionary disqualification, and they exercise that discretion in the light of the accused's whole record and particularly with the knowledge that, if they think that he should have a longer disqualification because of his totting up record, they can bring that about. If they decide not to disqualify him, the points are added to the licence and he then falls under the totting up provisions. If they do disqualify him under the discretionary disqualification, his points for that offence are not taken into account in totting up.

If they think that he should be disqualified for the longer period appropriate to his record under the totting up provisions, they achieve that by not imposing a discretionary disqualification. The magistrates are then free to take the points of the instant offence into account and add them to the points already on his licence.

There may be cases where the Justices think that the instant offence is not sufficiently serious to merit disqualification at all. In those circumstances they will not make a discretionary disqualification, but the points will nonetheless count towards the totting-up provisions.

Thus when sentencing a defendant under the provisions of the Road Traffic Offenders Act 1988 for an offence involving discretionary disqualification pursuant to Section 34 of the Act and a potential obligatory disqualification pursuant to Section 35 of the Act where a defendant would be liable for totting disqualification, the Court is obliged to decide whether to impose a disqualification for the offence pursuant to Section 34 of the Act before it can consider whether the provisions of Section 35 of the Act apply.

Further, the decision as to the imposition of a disqualification for the offence pursuant to Section 34 of the Act should be made without reference to any prior endorsements.

If you are being prosecuted for a driving offence then please do not hesitate to contact our Criminal department.

If you need any driving-related or Criminal Law advice please contact Julia Brassington of our Criminal Law department. Rundlewalker Solicitors on 0800 015 2568.

Philippa Jefferies – 01392 209209 Email: phiIippa.jefferies@rundlewalker.com
Julia Brassington – 01392 209207 Email: julia.brassington@rundlewalker.com

All calls will be treated in complete confidence.