Can you count your Worship?

Maths training for Magistrates. Flckr creative commons Tracey Mahler
If drivers are supposed to be disqualified from driving when they incur 12 points on their licence in a three year period, why are over 7,000 people still allowed to drive after accumulating between 12 and 45 points? Can the Magistrates not manage the maths or do they just misunderstand the meaning of 'exceptional' hardship, the motorist's mitigation?

Catch 22 with driving bans

Last week, when giving evidence to the Transport Committee, CTC's Policy Director Roger Geffen referred to the case of HGV driver Barry Meyer, who had been disqualified from driving on five previous occasions prior to his fatal collision with cyclist Alan Neve in 2013. The case begs questions as to why Meyer had still been permitted to drive at all, and how the disqualification process operates.

Figures from the Ministry of Justice (MoJ) reveal that the number of drivers jailed for driving whilst disqualified has fallen from 9,925 in 2005 to just 1,654 in 2014. Falling crime numbers according to the MoJ.

Catch 22. Unfortunately drivers can't be convicted of driving whilst disqualified if nobody disqualifies them in the first place! So why are so many people managing to dodge a ban?

Are sums or the meaning of words the problem?

Everyone who drives knows that they are liable to be disqualified from driving if they end up with 12 points on their licence in a three year period. It's known as 'totting up' the points. A  freedom of information request to the Driver and Vehicle Licencing Authority (DVLA) however revealed that, in July 2015, there were some 19,848 drivers in England and Wales with more than 12 points on their licence, 7,078 of whom were still allowed to drive by the Magistrates, up by 500 in two months.

The 'totting up' ban is supposed to be for a minimum period of six months the first time the points tot up to 12, (longer if it happens again), unless the driver can claim that they would suffer 'exceptional hardship' were they to lose their licence for that period or at all. When the Courts let 35% of drivers off a ban, the question has to be asked whether somebody simply cannot do the sums, or whether any inconvenience now equates to 'exceptional hardship'.

42 points and 109 mph in a 50 zone - "carry on driving"

We are not talking about marginal speeding offences here, but a driver clocked at 109mph in a 50 zone, who committed multiple speeding and red light offences within a three month period last year, and eventually came before Southend Magistrates' Court in July with 42 points on his licence. As the Daily Mail reported, construction site manager Alex McFarlane avoided a ban, claiming "exceptional hardship", namely that he would lose his job if he lost his licence, and that he was in debt. Safety relevance?

Most people who lose their driving licence will be inconvenienced, otherwise disqualification would be a limited deterrent. Those who drive professionally might genuinely face loss of employment if banned. However, those in that position might also be expected not only to drive to a higher standard, but also to value their licence sufficiently to make sure they don't lose it. Claiming you will lose your job, supported by a two line e-mail from your employer, is too easy a claim to make.

The truly exceptional aspects of McFarlane's case were firstly that he was not disqualified for the 109mph speeding offence alone, secondly the level by which he exceeded the speed limit, and thirdly the number of offences committed and points accrued. The fact that, as for many others, a disqualification would impact upon his life was entirely unexceptional.

Exceptional hardship - I need to drive the school bus!

When transport company owner Barry Short appeared before a court in Perth in July, admitted speeding at 71mph in a 50 zone and had reached the 12 point threshold, he claimed that he had no other driver in his business qualified to undertake the school contract bus runs. The issue of whether Short should really be driving school buses seems to have been less of a concern than the problems, of his own making, he might experience if he could not drive young children to and from school.

McFarlane's and Short's cases are just two examples of many cases where the court seems to have put the inconvenience of disqualification before road safety and principles of deterrence. As Kevin Clinton, Head of Road Safety at the Royal Society for the Prevention of Accidents (RoSPA), succinctly put it in McFarlane's case:

The penalty points system relies on the courts actually disqualifying drivers who persistently commit motoring offences and accumulate 12 or more penalty points otherwise these drivers will have little incentive to change their driving behaviour.

Kevin Clinton Head of Road Safety, RoSPA

What is predictable is not exceptional

There is no legal definition of "exceptional hardship" for this purpose, so magistrates can decide what it means in each case, unsurprisingly leading to a postcode lottery. Magistrates in Nottingham appear the most gullible and this is the area where drivers are 'most likely to dodge disqualification', with 180 drivers on the roads with more than 12 points on their licence. Time perhaps for a new Sheriff?

Put simply, car-driving magistrates, who would be inconvenienced by losing their own licences, are unduly sympathetic to pleas of "exceptional hardship" from drivers facing totting bans who claim they would lose their job, have family commitments requiring them to drive, or would otherwise be adversely affected by disqualification. So, when deciding whether to ban a driver who has accumulated 12 points, they somehow persuade themselves that the resulting "hardships" would be "exceptional" in 35% of cases.

The "exceptional hardship" plea was meant to provide magistrates with a discretion not to impose a totting ban in rare cases. So, unless there is a maths issue adding up the points, it seems that too many magistrates don't understand the meaning of the word 'exceptional'. It is time this loophole was closed.

Repeat offenders

Curiously, amongst the mass of road safety data and statistics available in Britain, there is little information about the number of injuries and incidents caused by repeat offenders, and specifically those who have already or should have been disqualified. Anecdotally, however, the experience of many cyclists is that they encounter a group of drivers who repeatedly disregard the rules of the road and present a disproportionate risk. 

Statistics from both Ireland and New Zealand support the anecdotal observation above. The Independent Irish News reported last month that between January 2013 and March 2015 more than 500 drivers who should have been off the road already but had not yet been disqualified due to delays in the Irish legal process, were subsequently involved in crashes leading to a further conviction for dangerous driving or causing death or serious injury by their driving, before they were disqualified for their original offences. A high risk group of repeat offenders who needed to be disqualified before they caused further harm, not after.

Removing discretion in disqualification

To improve road safety for cyclists and other vulnerable road users, the drivers with the least regard for the rules need to removed from the roads. Most of the time that decision falls to the magistrates to make. The law provides for a compulsory totting ban, and then gives the court a discretion to waive this in exceptional circumstances. If magistrates can't understand the definition of "exceptional" and decline to disqualify to suit in a postcode lottery, that discretion should be removed.

One of the Road Justice priorities in recent months has been chasing the MoJ about when their promised  review of motoring offences and sentencing will actually commence. A full review of driving disqualifications, including removing the "exceptional hardship" loophole, will be one of CTC's key demands within that review, when we eventually get a start date!