Getting a fixed penalty notice for a minor motoring offence is often nothing more than a costly inconvenience. However, for motorists with a number of points already endorsed on their driving licence within the last 3 years, getting caught again for speeding, or any other type of motoring offence, can have devastating effects. This is because accumulating too many points within a short space of time can result in a minimum 6-month totting up ban.
Below we look at how totting up bans work in practice and what steps you should take if you have been caught speeding, or are being prosecuted for any other motoring offence, and are now facing the possibility of a temporary disqualification from driving.
What is a totting up ban?
A totting up ban is where a motorist accumulates 12 or more penalty points on their driving licence within any 3-year period leading to a minimum period of disqualification of 6 months. For new drivers, the rules are even stricter, where their licence will be revoked if they receive 6 penalty points within their 2-year probationary period.
Importantly, an accumulation of 12 or more points could result from a number of different endorsable offences. In addition to driving in excess of the legal speed limit, other common motoring offences could include driving without due care and attention, using a mobile phone while driving or failing to comply with traffic light signals. This means that if you were given 3 points for running a red light and another 3 points for speeding, and are subsequently prosecuted for driving without due care and attention, which carries between 3 to 9 points, this could easily result in a totting up ban if you receive a further 6 points.
The idea behind a totting up ban is to disqualify those drivers who, within a short timeframe, commit the same motoring offence multiple times or a number of different motoring offences. In this way, the totting up ban is designed to act as a deterrent to those who continue to break the rules of the road which are there to keep people safe. Once the ban is up, the driver may also be required to retake their test or take an extended test.
How does a totting up ban work?
Minor motoring offences, such as speeding or running a red light, do not commonly end up in court. In most cases, the police will have clear photographic evidence of the commission of the offence, which the motorist will be hard pressed to contest. Equally, provided the offence is not regarded as too serious, such as driving grossly in excess of the legal speed limit, the motorist will be sent a fixed penalty notice of 3 points plus a £100 fine.
However, you could find yourself defending a charge at court if the number of points likely to be endorsed on your licence will put you at risk of a ban under the totting up provisions. This means, for example, that if you have 9 or more points on your driving licence at the commission of the motoring offence in question, rather than sending you a fixed penalty notice for the matter to be concluded without the need for court proceedings, you will be sent a summons to appear before the Magistrates Court.
If a totting up ban is imposed, the court will decide how long this will last, based on how serious the offence is. The minimum period of disqualification is 6 months, although this could be longer if you have been banned before. If you have been previously disqualified for 56 days or more in the last 3 years, you could be banned for a year, and if more than one previous disqualification is to be taken into account, you could be banned for 2 years.
Is there an exceptional hardship defence to a totting up ban?
Under section 35(1) of the Road Traffic Offenders Act 1988, which makes provision for disqualification for repeated offences, it states that the court must impose a minimum period of disqualification unless there are grounds for mitigating the normal consequences of the conviction and the court thinks fit to order a shorter period of disqualification or not to order the driver to be disqualified at all. Under section 35(4), in deciding whether to impose a ban, or a shorter ban, the court can take into account ‘exceptional hardship’.
In court, you will therefore be given the opportunity to make a plea against disqualification under the defence that it would cause you exceptional hardship. This plea should contain any information that you can provide to the court as to how a disqualification from driving could impact your life beyond a level that would normally be expected. There are a number of different scenarios that could amount to exceptional hardship, including:
- Loss of livelihood: although losing your job, of itself, is unlikely to be sufficient to prove exceptional hardship, if this is likely to result in, for example, the loss of your home or other serious financial difficulties, this could be enough to avoid a totting up ban.
- A restriction on transport: if you live in an especially isolated area, or where there is otherwise an inability for you to get to work due to geographical and public transport restrictions which, in turn, could lead to the loss of your job and financial hardship, this again may be sufficient to persuade the court not to impose a totting up ban.
- A restriction on mobility: if you have severe health problems or suffer from a disability, where a ban from driving could significantly restrict your mobility, leaving you otherwise isolated at home, the court may again exercise its discretion against imposing a ban. This could also apply to circumstances where you are the carer of someone with serious health issues, or suffering from a disability, and they are reliant on you to drive them about.
The court must assess the severity of the effects of a ban put forward by you, or on your behalf, and decide whether this would amount to hardship which is beyond that normally suffered. However, this is a matter entirely in the court’s discretion, where there must be evidence of not just ‘hardship’ but ‘exceptional hardship’ before the court will consider exercising any leniency. This is because almost every disqualification will entail a certain level of hardship. For example, loss of employment will be an inevitable consequence of a driving ban for many motorists, but if this is likely to cause you and others significant financial hardship, especially where you have a family to support, this may suffice.
In some cases, the court may still decide to impose a totting up ban but, provided you have no previous disqualifications, reduce this to say 3 months instead of 6. Conversely, however, the court also has the discretion, depending on the nature and severity of the offence in question, and any aggravating factors involved, to increase the period of disqualification.
In any case in which you are summonsed to attend court, seeking legal advice from a ‘totting up ban’ specialist is strongly advised. In this way, your legal adviser will be able to assess your prospects of successfully establishing an exceptional hardship defence. They can also explore any other available ways of potentially avoiding a driving disqualification. Having expert representation, with an experienced advocate to advance your case in court, can often mean the difference between an almost certain ban and keeping your licence.
Is there any other way of avoiding a totting up ban?
In addition to raising an exceptional hardship defence, there are others ways of avoiding a totting up ban. These include pleading “guilty”, but while seeking to mitigate the seriousness of the offence to reduce the number of points to be endorsed on your licence so as to keep these under 12. However, this will only be possible where you have less than 9 points already on your licence as, even for minor motoring offences, the court will always endorse with a minimum of 3 points. Alternatively, you can plead “not guilty” and adduce evidence to either prove your innocence or to challenge the offence on technical grounds.
In some cases, you may also be at risk from a discretionary ban, depending on the nature and the gravity of the offence. For example, even though speeding is one of the more minor motoring offences, it is also possible to be given a period of disqualification for driving significantly in excess of the speed limit, even if you have no prior endorsements. In these cases, you may also want to consider what steps can be taken to avoid disqualification.
When it comes to penalty points, the court will consider the relevant sentencing guidelines for the motoring offence in question. For example, there is a useful table under the speeding sentencing guidelines which sets out the number of points and level of fine that the court should use as starting point when deciding on an appropriate sentence. However, the court will go on to consider any aggravating or mitigating features that may justify a sentence at either the higher or lower end of each speeding band. For the motorist with no previous speeding convictions who was driving fast because of a genuine emergency, the court may be persuaded to impose only 3 points. This means that for the driver with 8 or less points on their licence, they will avoid a totting up ban, at least for the time being.
However, when it comes to challenging the commission of the offence, this can be much trickier. This is because you will need to adduce sufficient evidence to show either that you did not commit the offence as alleged or to significantly undermine the accuracy of the evidence put before the court to prove your guilt. In some cases, you may need to adduce expert evidence, for example, to challenge the accuracy of your alleged speed.
What is the totting up ban code?
Having been convicted of a motoring offence, each endorsement has a special code and is given certain points on a scale from 1 to 11, with more points for the more serious offences.
If there is no basis upon which to avoid a totting up ban and you are disqualified from driving, the good news is that these accumulated points will be wiped clean after your ban is up. However, your licence will still be endorsed with the totting up ban code ‘TT99’. This code will stay on your licence for a period of 4 years from the date of your conviction. For example, if you are convicted of speeding and a totting up ban is imposed on 1 March 2023, the TT99 code must stay on your driving record until 1 March 2027.
For any 4-year endorsement on a driving licence, this will remain valid for the first 3 years. This means that if you commit another offence during this 3-year period and the endorsement is still on your driving record when the court considers your case, this can be taken into account. Any time during a 4-year endorsement, including a totting up ban code, vehicle insurers and employers may also seek disclosure of this information.
What can you do if you are at risk of a totting up ban?
If you are at risk of a totting up ban, you should immediately seek expert legal advice. By securing advice as soon as possible, steps can be taken to prepare your case for court.
If there is sufficient basis upon which to put forward a defence of exceptional hardship, your legal adviser can start to prepare the detailed mitigation that will be needed to help persuade the court that a driving disqualification is not appropriate in your case. Equally, if there are grounds to mitigate the seriousness of the offence, or to challenge the commission of the offence itself, your adviser can again start to build your case, including any requests for evidence from the police before the matter gets to court. In this way, an assessment can be made as to the totality of the evidence against you and how best to defend you.
Totting up ban FAQs
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Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
