Discretionary ban could not follow hardship finding: Sheriff Appeal Court

A magistrate who had found that a totting-up driving disqualification would result in exceptional hardship, was not then entitled to impose a discretionary disqualification when sentencing for the offence in question, the Sheriff Appeal Court has ruled.

Sheriff Principal Craig Scott QC and Sheriff John Morris QC gave the ruling in allowing an appeal by Daniel Hamand from the Glasgow Justice of the Peace Court, following his conviction for driving while using a mobile phone and using a vehicle without insurance.

A proof on exceptional hardship took place under s 35 of the Road Traffic Offenders Act 1988, after which the magistrate found that such hardship had been established. On a further hearing on sentence, the accused's solicitor submitted that the court should confine its attention to a fine and penalty points, but the magistrate, having noticed on the DVLA printout an endorsement for a similar insurance offence a week before the present offence, imposed a six month disqualification along with a £200 fine.

Sheriff Principal Scott, delivering the opinion of the court, said that the allowance of a proof on exceptional hardship "carries with it the clear implication that the court was restricting its consideration to the issue of whether a mandatory disqualification by way of the totting up procedure might be avoided". Had the previous endorsement been deemed sufficient to merit a discretionary disqualification, the court should have proceeded to impose one rather than allowing an exceptional hardship proof to take place.

"Moreover, where such a proof does take place and where exceptional hardship is held established by the court, the court cannot then in effect cast that determination aside and instead reintroduce a disposal which it had already ruled out, viz to say a discretionary disqualification", he concluded.

The court quashed the disqualification and imposed eight penalty points instead. The finding of exceptional hardship prevented a totting-up disqalification.

Click here to view the opinion of the court.