Given the number of speed cameras on our roads today and the clampdown on offences such using hand-held mobile phones while driving, a concern for employers and employees alike is the risk of the loss of a driving licence, particularly where a key employee's work relies on their ability to drive.

A lot of misconceptions abound about the rules governing the loss of a person's licence under what is known as the "totting up" provisions. The following may therefore be of assistance.

The totting provisions are set out in s35 Road Traffic Offenders Act 1988 and basically specify that if a person accumulates 12 or more penalty points for offences committed within any three year period, they shall be disqualified for a minimum period of six months. It is the date of offence, not the date of conviction, which is relevant and therefore seeking to delay court proceedings will not overcome the rules.

Not all motoring offences are endorsable but those that are carry a minimum of three penalty points with some, such as speeding, carrying a range of points depending on the seriousness of the circumstances alleged.

Where a person is offered a fixed penalty, this would be for three penalty points and (currently) a £60 fine. If a person wishes to dispute the offence or where the addition of penalty points would result in the driver accumulating 12 points or more, they will be summonsed to attend court where, if convicted, the court can impose a greater number of points (where applicable) and a higher fine.

The court does have discretion not to disqualify a driver, or to disqualify for a period less than six months if, on hearing evidence, it considers that loss of licence would result in exceptional hardship, either to the driver or others.

This may not only include, for instance, family members, but also work colleagues where, for instance, the loss of a key employee's licence might jeopardise a business and thus risk the jobs of others.

If such argument is successful, the driver would keep his/her licence but would be unable to rely on the same circumstances for the next three years. As their licence would retain the penalty points endorsed, typically it would mean that they would be one further endorsable offence away from disqualification. Otherwise a totting disqualification wipes all current penalty points off the licence.

An alternative solution available to the court is to impose a discretionary disqualification for the new offence, typically for a period of between seven and 56 days.

This allows the court to mark the offence with a shorter disqualification, avoiding the need to consider whether exceptional hardship arises. Such a disqualification, where imposed, does not act to remove pre-existing penalty points but allows a driver to reserve the exceptional hardship argument for another day or avoids the problem of where it has been used before.

A court, however, will be slow to use this discretion in less than deserving cases.

At Gullands we have extensive experience of dealing with all manner of road traffic offences. We offer a range of services, including a free initial telephone consultation to consider the merits of any case, and a range of fixed fees to cover initial meetings through to court appearances. For further info contact our office on 01622 678341.

n John Roberts is a partner and head of Gullands Criminal Litigation team. He regularly advises individuals on motoring offences and can be reached by email: j.roberts@gullands.com