Exceptional Hardship

Under s.35 of the Road Traffic Offenders Act 1988, a court must order disqualification for a minimum period where a person is convicted of an offence and the penalty points to be taken into account number twelve or more (the 'totting-up' procedure), unless satisfied there are grounds for mitigating the normal consequences of conviction. Section 35(4) restricts what the court may take into account for this purpose: it excludes any circumstance alleged to make the offence not a serious one, and excludes 'hardship, other than exceptional hardship'. The burden is on the driver (a 'totter' — someone with 12 or more points endorsed within a three-year span) to satisfy the magistrates', on the civil standard, that disqualification would cause hardship that is exceptional rather than merely inconvenient.

In practice this means loss of employment alone is not necessarily exceptional hardship — the driver must show the loss of employment would itself cause further significant hardship, whether to the driver or to third parties such as employees or dependants, and courts will consider alternatives such as public transport, lifts, or a hired driver before accepting the argument. Because a finding of exceptional hardship within the preceding three years cannot be relied on again for a further three years, courts scrutinise repeat pleas closely. The Adult Court Bench Book used by magistrates describes exceptional hardship findings as 'strict and clearly defined', and advises that legal advice be sought whenever the issue is raised.