Magistrate erred in imposing driving ban having already held that ‘exceptional hardship’ had been established, Sheriff Appeal Court rules
A magistrate was not entitled to impose a driving ban on a motorist convicted of driving while using a mobile phone and without insurance having already determined that “exceptional hardship” had been established, the Sheriff Appeal Court has ruled.
Daniel Hamand successfully appealed against his sentence and had his disqualification period quashed after appeal sheriffs held that the magistrate had adopted an “illegitimate” approach in effectively deciding to “reintroduce” a disposal which he had already ruled out.
Sheriff Principal Craig Scott QC and Sheriff John Morris QC heard that on 19 November 2015 at an adjourned trial diet, the appellant pleaded guilty to firstly, a charge of driving while using a mobile phone and secondly, using a motor vehicle without insurance.
Initially, a special reasons proof was assigned. However, thereafter the appellant’s position altered and the court was persuaded to assign an exceptional hardship proof, in terms of section 35 of the Road Traffic Offenders Act 1988.
The proof ultimately took place on 10 February 2016, the presiding magistrate having heard evidence found that exceptional hardship had been established.
That being so, the appellant’s agent, when addressing the magistrate in mitigation, submitted that the court should confine its sentence to monetary penalties, coupled with the endorsement of the appellant’s licence with appropriate penalty points, on the basis that the need for disqualification had been avoided owing to the court’s finding of exceptional hardship.
However, in the course of the plea in mitigation, the magistrate drew attention to the printout obtained from DVLA, which disclosed an endorsement for a similar offence, namely, using a motor vehicle without insurance on 17 February 2014 – one week prior to the offence then under consideration.
When it came to sentencing on the second charge on the complaint using without insurance, the magistrate, influenced by the existence of the analogous offence, imposed a fine in the sum of £200 and disqualified the appellant from holding or obtaining a driving licence for six months.
But the appellant challenged disqualification, arguing that once the magistrate had proceeded to the stage of hearing evidence and submissions on the question about exceptional hardship, the court had thereby “passed beyond consideration” of a discretion of a discretionary disqualification.
Accordingly, having proceeded to hear evidence and submissions and to determine that exceptional hardship had been established, counsel submitted that it was “not open” to the magistrate thereafter to revert back as it were, to consideration and imposition of a discretionary disqualification period.
The appeal sheriffs agreed with the submissions advanced on behalf of the appellant and therefore quashed the sentence.
Delivering the opinion of the court, Sheriff Principal Scott said: “In our view the allowance of an exceptional hardship proof 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.
“For example had the endorsement flowing from the events of 17 February 2014 been deemed sufficient to merit the imposition of a discretionary disqualification, then the court at that stage ought to have proceeded in that way 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.
“Therefore in the circumstances of this case, we consider the approach of the magistrate to have been an illegitimate one. He was not entitled to consider and to impose a discretionary period of disqualification.
“All that being so, we shall quash the six month disqualification period imposed on charge 2 and in lieu thereof we shall order that eight penalty points be endorsed on the appellant’s licence and of course, for the avoidance of doubt, exceptional hardship having already been established, there will be no mandatory period of disqualification resulting as a consequence of the totting up procedure.”
He added: “For completeness, we are reminded that the penalty points in respect of charge 1 cannot stand in these particular circumstances so they will be removed but his licence will simply be endorsed in respect of charge 1.”