While we don’t yet know what all the ramifications of Covid-19 will be, some have already become clear. Two of these – namely, the financial strain placed on small businesses and the increased reliance on delivery services – interact in interesting ways, as we’ve observed at De Jure Chambers over the last few weeks. One of our recent clients is a small business owner who runs a delivery service. Like many other small business owners, he has suffered from the stress of having to take on larger and larger volumes of work every day in order to keep his business afloat throughout this pandemic. He was charged with a speeding offence when he already had nine points on his licence, which put him at risk of a ban. Since losing his licence would mean losing his livelihood – not to mention the livelihoods of his employees – he was naturally very concerned. Our success in having the ban waived by arguing “exceptional hardship” shows that defences which have already been established can allow Courts to meaningfully consider the disproportionately negative impact of COVID-19 on small businesses, and that this consideration can lead to less punitive verdicts. At the same time, however, these defences exist in a legal realm where administrative hurdles are heightened, which poses another difficulty to overcome.
The law stipulates that any driver who has accumulated 12 or more penalty points on their license should be disqualified for no less than 6 months. However, the Court can choose not to disqualify the driver, or reduce the period of disqualification, if it is satisfied that there are grounds for mitigating the normal consequences of the conviction. What the Court can take into consideration is limited, but it includes “exceptional hardships”. The other two defences available are: defending the allegation made, and arguing a case of special reasons. The former would require our client to present a technical defence, for example if he could show that he was not the one driving the vehicle at the time of the alleged offence. The latter would require our client to plead guilty to the offence, but with this plea submit special reasons to the Court explaining the exceptional circumstances which led him to drive dangerously – for example, a medical emergency. Both these options place the burden on the defendant to submit evidence that proves his case. The third option required our client to make the argument that a driving disqualification would bring about exceptional hardship, rather than inconvenience or usual hardship. This was the most appropriate choice of defence based on our client’s circumstances.
How did exceptional hardship work before COVID-19?
The Sentencing Council’s guide to exceptional hardship acknowledges that almost every disqualification will entail hardship for the person disqualified. This is because there is a deterrent objective within the Road Traffic Offences provisions – it aims to encourage safer driving practices through its punitive elements.
As a result, the threshold is quite high and excludes certain claims. First, the loss of employment is an inevitable consequence of a driving ban for most people, therefore it is not sufficient in and of itself to demonstrate exceptional hardship. For example, in the case of Brennan v McKay, a taxi driver accumulated 12 penalty points and argued that, if he were to lose his license, he would lose his job and suffer financial difficulty. The Court held that this difficulty would not be exceptional because loss of employment is almost always inevitable where a driving ban is implemented, and thus is not sufficient to be exceptional hardship.
Then, there is the degree of proof required for demonstrating exceptional hardship. The burden is on the offender to provide this evidence, and it has to prove the balance of probabilities – that an event is more likely to occur than not. If exceptional hardship can be asserted, the Courts are cautious to accept this if there are clearly ways the defendant could avoid this hardship through using alternatives to a driving licence – other modes of transport, for instance. So the evidence must show, in substantiated detail, that there are no such alternative options available to them.
The case law helps to specify some of the circumstances in which Magistrates Courts have considered there to be exceptional hardship on the balance of probabilities. It is important to note that Magistrates’ Court cases do not set precedents but can be referred to as guidance. In the previous cases, Courts have not imposed a driving ban where there is a detriment additional to loss of employment. For example, in R v F,  the Court did not impose a driving ban where the disqualification would lead to the defendant’s loss of gardening business and repossession of the home. Courts also take into consideration “public interests”. For example, in R v M,  the Court did not impose a driving ban as disqualifying the driver would cause exceptional hardship to others, namely members of the public she helped as a healthcare professional working for the NHS. We were also able to identify that courts are willing to take note of the current socio-economic climate. In Mugaraneza v PF, the 2008 financial crisis, on top of the importance of the business to the financial security of the driver and 3 other employees, was a significant factor in the court deciding not to disqualify him. Therefore, the pattern of rulings show that the Court is likely to see exceptional hardship where the loss of employment has a severe knock-on effect, such as negatively impacting other people.
How might exceptional hardship work in the context of COVID-19?
In our client’s case, the pressures of COVID-19 played a massive role in the incident leading to the most recent speeding offence, and his inability to stay on top of the previous offences that accumulated during the year. As shown above, the Magistrates’ Courts have shown a willingness to consider the current climate as part of the factors that make hardship exceptional. Therefore, we worked with the client to collate evidence that would demonstrate the detrimental toll that COVID-19 had on the client. This was primarily in the form of character references which demonstrated that COVID-19 took a noticeable toll on our client, making him more susceptible to errors.
Our client was also able to demonstrate his exceptional financial circumstances, showing how his financial burdens would worsen should he be banned from driving. As stated above, his driving was relied upon by his employees. Keeping in mind the cautious approach the court takes, we encouraged our client to explain the routes taken by his employees and why public transport, for instance, would not be a feasible alternative. Our client was also able to demonstrate through his business finances and his personal financial duties that he could not afford to lose the income his business generated through the driving license – his business would collapse, and he would be unable to afford his living expenses.
Thus, our client’s case was built on similarities to patterns pre-existing within the Magistrates’ Court, with enough room to take into consideration the new factor of COVID-19.
Final Thoughts: is exceptional hardship brought about by COVID-19 a valid defence, or is it too lenient?
Exceptional hardship in this instance led the Magistrates’ Court to decide not to take away our client’s license. Some people might say that this is too lenient because everyone has experienced financial hardship due to this pandemic. However, the financial strain of COVID-19 is not entirely inevitable. Though COVID-19 has affected everyone in some way, there is disproportionality in the degree to which each person is impacted – it is up to the individual defendant to demonstrate the specifics of how. Our client’s success is primarily due to the specificity of the evidence he was able to present, not merely because the case was presented in Covid times. So financial hardship brought about by the pandemic is not really an umbrella defence. Furthermore, there is also evidence that Magistrates’ Courts have considered the current financial climate before in cases such as Mugaraneza. And finally, the Court’s discretion means that they can simply reduce the sentence by a matter of degree, not type. The Court can also impose alternative sentences that still have an impact on the defendant. For example, the court can choose to impose a shorter driving ban, in place of refusing to impose a ban. The Court can also still add points to the defendant’s license, increasing their need for caution when driving; and impose fines, which can add significantly to the financial difficulty the defendant is in. And finally, the reasons used for exceptional hardship cannot be relied upon for any offences committed over the next three years. Exceptional hardship is therefore not equivalent to leniency. It simply allows the Court to meaningfully consider the defendant’s circumstances even where the situation is unprecedented, such as COVID-19.
Author: Blessing Odunyemi
Editor: Isobel Macleod
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 Road Traffic Offenders Act (RTOA) 1988, s35(1)
 RTOA 1988, s35(4)(b)
 Sentencing Council Explanatory Materials for Road Traffic Offences – disqualification “’Totting up’ disqualification”, https://www.sentencingcouncil.org.uk/explanatory-material/magistrates-court/item/road-traffic-offences-disqualification/3-totting-up-disqualification/ <accessed 05 October 2021>
 Brennan v McKay (1996) 1997 SLT 603
 Sentencing Council Explanatory Materials (n 4)
 R v F, Harrogate Magistrates’ Court
 R v M, Leeds Magistrates’ Court
 Mugaraneza v Procurator Fiscal, Glasgow (unreported December 2008)