Exceptional Hardship and Special Reasons

The most commonly confused terms in a motoring lawyer’s world are those of “Exceptional Hardship” and “Special Reasons.” Both refer to completely different arguments that are rarely connected.

In February 2019, the team at Geoffrey Miller Solicitors were involved in two separate cases where exceptional hardship and special reasons were found. We have outlined below some of the detail about the arguments and the cases concerned.

“Exceptional Hardship” is an argument used solely to persuade a Court against imposing a “totting up” ban due to the exceptional hardship this could cause to the offender or those reliant on the offender’s ability to drive.

A “totting up” disqualification is imposed if a motorist accrues 12 or more points in a 3 year period. The starting point for a ban would be 6 months unless an offender has also had a ban of 56 days or more within the 3 year period in which case, the length of time of the road, doubles to 1 year. Geoffrey Miller Solicitors have argued exceptional hardship successfully in all manner of cases over the years. Some of the more notable hardship arguments have been:

For many drivers who drive above average miles per year, there is an added complication in a case where there may be two or more allegations that crystallise around the same time. The reason this complicates matters is because you are only permitted to raise exceptional hardship argument relating to the same set of facts on one occasion. Therefore for example, you can’t go to court in Birmingham Magistrates’ Court and argue exceptional hardship on one day and then use the same arguments a week later in Peterborough Magistrates’ Court for another minor speeding case even if the offences were committed on the same day.

When faced with this situation, therefore, our determination and persistence is key to being able to have a number of allegations joined together and heard at the same time and in the same court. This might seem to be quite a simple objective. However, the bureaucracy in having cases that have been commenced by different police constabularies being joined and heard together can be mind blowing and incredibly time-consuming. When we are instructed in these multiple offence cases, we make it a priority to persuade the courts concerned to adopt a fair and sensible approach and in most cases we are successful in overcoming this initial hurdle.

In the case of Gianni Cribelli heard in February 2019, our client not only had two separate speeding allegations but when he attended court on the first occasion, he informed us that he was concerned he may have been flashed by a speed camera for a third time. To be sure that we were not jeopardising his chances of being able to argue hardship again, we sought an adjournment of the case to enable us to establish whether there was a third allegation to be joined to the duo we were already handling.

We knew that if Gianni did not receive a notice of intended prosecution within 14 days of the date he thought he had been flashed, he would be safe from being prosecuted because there is a strict 14 day time limit for service of an NIP on the registered keeper of a vehicle, the driver of which is suspected to have committed an offence. Thankfully, when we attended court on the 13th of February 2019, we were still only arguing exceptional hardship in relation to 2 allegations and not three. The court accepted that Gianni’s ability to drive was essential for him continuing to make a living. Perhaps more importantly was the support he provides to his family. The court accepted a ban of six months would cause him and others exceptional hardship and allowed him to continue to drive despite being on 15 points. This is what he had to say about his experience:

When we are preparing for an exceptional hardship argument, we like to gather as much information and evidence as possible in support of our mitigation presentation. We often find clients are concerned that their arguments are not likely to be considered exceptional but when we are able to delve into the detail, we are usually able to overcome these concerns. In addition to preparing a case for the best possible outcome, we see our role as guiding clients through the process. Many of our clients have never had any dealings with the criminal justice system and this in itself can be the source of significant anxiety. Once we explain the process this anxiety reduces and of course, we are there at court with you every step of the way.

Special reasons are nothing to do with totting up or exceptional hardship. The Law regarding ‘Special Reasons’ can be found at Sections 34(1), 44 (1) and (2) of the Road Traffic Offenders Act 1988. Section 34 allows the court to impose an alternative penalty to the mandatory minimum if persuaded there are ‘Special Reasons’ for doing so.

If the special reasons are accepted, they enable the Magistrates to impose a lesser penalty for an offence or in extreme cases, like in the case of Mr Ansermoz below, no penalty at all.

‘Special Reasons’ do not have to be proven beyond reasonable doubt but the defence must make its case out on the balance of probabilities.

The most commonly raised special reasons are:

Spiked drinks – be warned, however, as the courts are often very sceptical of anyone raising this in response to a drink driving charge. Expert and corroboratory evidence will be crucial if the court are to be persuaded

Emergency – our case of Lloyd Ansermoz involving a mercy dash to the hospital was a good example of this. Lloyd had been alleged to have been travelling at 128 mph on the M6. The Magistrates’ Court at Northwich accepted that the circumstances surrounding this matter (namely that Mr Ansermoz’s son had attempted suicide and was in critical condition at hospital.) This meant that, despite the level of speed alleged, Mr Ansermoz received no penalty or fine for this matter.

Medical emergency: If a driver is confronted with a medical emergency that is immediate, unforseen and serious, they may claim special reasons for speeding. For example, you are driving with your family when your child begins to choke and loses consciousness, there is no way of contacting the emergency services and you break the limit in reaching the hospital.

Fear for life: If a driver fears that he is a risk of death or serious physical injury he can claim special reasons to avoid penalty for his speeding. For example, your car is bumped from behind at traffic lights and a gang of hooded men with baseball bats approach your car to attempt a car jack. You floor the accelerator and speed away, breaking the limit in the process.

This could, however, be a complete defence of duress of circumstance. Ie “If he DOESN’T speed away then he’s done for…?” The distance driven will be taken into account as to how far he’d driven before he was no longer under threat.

Mechanical failure: If your car suddenly develops a fault – such a surge in power, or a stuck throttle such that seen recently in some Toyotas – which means that you break the speed limit you may be able to argue special reasons. Your story would need to be corroborated by an independent engineer’s report.

The celebrity defence: You are a celebrity being followed by a pack of paparazzi, they begin driving erratically, close to your car, and you decide the safest way to avoid a serious accident to outrun them.

Shortness of distance driven – this is an argument raised in drink and drug driving cases where the intention of the driver to move a very short distance is key to the courts decision to impose a penalty less than the mandatory minimum. We were involved in a case where our client was convicted of drink-driving but the court accepted he had only intended to move his vehicle from one parking space to another, not actually moving the vehicle onto a public highway.

Special Reasons can apply to any offence but must meet the following criteria:

• The reason must be mitigating or extenuating circumstance;
• It must not amount to a defence;
• It must be directly connected to the commission of the offence, and
• The reason must be one that the court ought properly take into account when imposing punishment.

In February 2019, we were successful in arguing special reasons in relation to an allegation of failing to provide driver details. On the day of the speeding incident (29th May 2018 at 08:23 hrs) Toby was in the middle of his first year exams at Cardiff University. Toby started a degree in astrophysics in 2017. He had not seen the car for about three weeks prior to the speeding incident as he had not taken the car with him to Cardiff. Toby had no idea that there had been a speeding incident on 29th May and had not been aware of a notice of intended prosecution and a request for driver details sent out to his home address on 30th May. Toby also had no knowledge of a chasing letter from the police dated 28th June 2018. The first Toby knew of the speeding incident was in November 2018 when his father handed to him the Single Justice Procedure Notice (“SJPN”) and the supporting evidence. The SJPN had been posted to Toby on 14th November 2018. It was at this point that his father had then confided to Toby that he had opened a NIP and request addressed to Toby in May 2018 and had not told Toby about this. Toby’s father had apparently been intending to deal with it but the matter got overlooked. Toby’s Dad does not normally open Toby’s mail and had never done this before to Toby’s knowledge although he does not get a great deal of mail. This normally consists of bank statements which are not opened. The mail is normally placed by Toby’s parents on a clipboard in the kitchen and Toby accesses it when he comes home from University. Toby is normally only away from home every two to three weeks. Toby has not had a problem with his mail before and he relied on his parents to ensure that he got his mail.

Toby was unable to argue that there had been ineffective service of the notice  of intended prosecution and request for driver details. Nor was he able to argue that he had the defence of reasonable practicability pursuant to section 172(7)(b) of RTA as explained in Whiteside v DPP [2011] EWHC 3471 (Admin). However, unusually for a fail to furnish offence, we approached the case by  reference to “the Wickens criteria.”

At court, both Toby and his father took the stand and confirmed their accounts of what had happened. We then took the justices through the four minimum criteria for special reasons set out in R. v Wickens (1958) 42 Cr. App. R. 236.

• We argued that Toby’s account as corroborated by his father was a mitigating or extenuating circumstance.
• The accounts did not amount in law to a defence to the charge. The fact that a failure by the registered keeper to receive notices properly served on him at the registered address might in principle provide a defence under subsection 172(7) of RTA if he could show that it was not reasonably practicable for him to have seen them. However, what the case of Whiteside makes clear is that ignorance exceptionally might on the facts constitute a defence, but pursuant to our advice, Toby,  accepted that he could not advance that defence because there was not in place a sufficiently robust arrangement with his parents to ensure that important notices addressed to him as registered keeper met with his attention. As registered keeper, Toby assumes some responsibility to respond to correspondence about the vehicle.
• The accounts given by Toby and his father were directly connected with the commission of the offence as Toby only committed the offence as a result of his father’s failure to hand the correspondence to him.
• The failure of Toby’s father is a factor which the court ought properly to take into account when considering sentence as Toby was morally blameless. His father accepted that the real blame was with him as the original speeder and his failure to hand the correspondence to Toby. We accepted that ultimate responsibility lies with him as registered keeper and a fine would be appropriate together with an award of costs to the CPS.

After some deliberation, the magistrates confirmed that they accepted the special reasons we had submitted and Toby received no penalty points although he was found guilty of the offence. He received a relatively low level fine which the court suggested Toby’s father may want to pay!

The result was a massive relief for Toby and his father, not least because Toby would have faced the revocation of his licence as a new driver had 6 points been imposed, although this was not part of the special reasons argument.

So as you can see, the court has a number of powers to impose penalties not necessarily outlined in their guidelines or no penalty at all. To persuade a court to exercise this power, however, we consider it essential to have the team of experts at Geoffrey Miller Solicitors on board to advise and guide you through the process.