Totting up guide in Scotland
Disqualification under “Totting up” procedures occurs when your conviction is recorded by the court and penalty points endorsed upon your driving licence. As this total grows they are commonly referred to as totting up, points. If you face totting up the court has to decide in terms of s35 of the Road Traffic Offenders Act 1988, how many points or if a discretionary ban is required in the circumstances of your case. This is done BEFORE any decision about whether an Exceptional Hardship Proof is required or will be allowed.
See the case of Hammand -v- Procurator Fiscal 2016 Sheriff Appeals court The court stated ” For our part, we agree with the submissions advanced on behalf of the appellant. 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. ”
When a court refers to “Totting Up” they are referring to the accumulation of 12 or more points on your driving licence and the decision to disqualify you from driving or holding a driving licence. Fill in the online form and ask for our Exceptional Hardship Leaflet for a lot more information on how to save your licence when facing a Totting Up Ban in Scotland..
Totting up is recorded from date of offence to date of offence. This has to be one of the most frequent questions we are asked about as people consider trying to delay their case in some way to escape totting up. This will not work. Points are counted from date of offence to date of offence.
Endorsements must stay on your driving licence for four or eleven years depending on the offence. They are live for totting purposes for 3 years but you cannot have them removed from your licence until the 4th anniversary
Usually a 6 month period (It is more if you have been banned before) is imposed when the court finds that totting up has reached 12 points but this is not always the case. A good lawyer can make a tremendous difference in how to present your case to the court to establish something called “Exceptional Hardship”
Penalty points and Codes
Each endorsement has a unique offence code and is allocated ‘penalty points’ on a scale from one to eleven, depending on the severity of the offence. The endorsement (and penalty points) is updated on your driver record and written on your paper driving licence or the counterpart document of your photocard driving licence. It is shown as a TT99 code. Usually done by DVLA but sometimes by the court where you appear.
Producing your driving licence for endorsement
You do need to take your licence to court with you but if you have lost the document then the court can USUALLY obtain a copy of your driver’s record from their computer system.
If your driving licence is mislaid or lost, get a duplicate online it is simple and easy and fast.
If your driving licence is not returned after being endorsed, you’ll need to contact the Fixed Penalty Office or the court responsible for endorsing it. If you’ve changed address, or your licence is damaged or the endorsement area is full, the Fixed Penalty Office or court will send your driving licence to DVLA to be updated. It will be returned to you within three weeks.
Removing expired endorsements from your driving licence
You can apply to remove expired endorsements by exchanging your driving licence for a new one.
Expired endorsements are automatically removed when you apply to renew or update your licence for other reasons.
Exceptional Hardship Proof
It is possible to reduce the length of disqualification or even remove it.
If there are mitigating circumstances. Simply saying to the court that the disqualification will cause hardship is not enough. It is thought that disqualification would normally cause hardship, and is part of the penalty. Only if you can show that the hardship is exceptional will the court consider that the penalty should be reduced. The courts interpret this strictly – exceptional hardship must be something out of the ordinary.
Exceptional hardship is only relevant when you are disqualified under the “totting up” provisions. If you accumulate 12 or more points on your licence within a period of three years, then you will automatically be disqualified from driving for a period of six months (or longer if you have been disqualified before).
What could amount to exceptional hardship in any given case depends on the circumstances. If you can show that the disqualification would also cause hardship to others – for example family members, work colleagues or employees, or others who rely on you, such as ill or infirm relatives – then this will certainly be in your favour. In one case, a self-employed painter and decorator argued that a disqualification would result in his business failing (resulting in hardship to him and his family) and his three employees losing their jobs (which would cause hardship for their families). The painter was the only person in the business who held a licence, and he required to drive a van to transport his employees and equipment. This was held to be exceptional hardship.
Alternatively, if the disqualification would cause you extreme personal hardship, then the courts may consider that exceptional hardship has been established. In one case, a driver argued that if he was disqualified, he would lose his job, be unable to pay his mortgage and would lose his house, would be unable to pay a loan from his employers, and would probably result in the break-up of his marriage. The court considered that in the circumstances this was exceptional hardship. In another case, a full-time taxi driver in his forties successfully argued that if he was disqualified, he would lose his taxi licence which would take him up to ten years to regain. The court found that this amounted to exceptional hardship.
Other cases in which exceptional hardship was established
Mugaraneza v PF Glasgow (11 December 2008)
Driver’s business would come to an end and his three employees (including his wife) would lose their employment if he was disqualified. The court noted the importance to the driver’s family of his income and that of his wife, and the current economic climate.
Colgan v McDonald (1999)
Single mother with one son who had cerebral palsy and another who had behavioural difficulties which necessitated psychiatric treatment. Required to drive her sons to school and hospital, and generally transport them.
Findlay v Walkingshaw (1998)
Driver was a livestock driver who also had very specific skills, experience and duties who would be difficult to replace. Disqualification would have a significant impact on the driver’s employer.
Howdle v Davidson (1994)
Wife had a franchise of a car garage, which was effectively run by her husband, the driver. Strong possibility that driver would lose his job and his wife would lose the franchise, leaving the driver, his wife and their children without income. The security of the company would also be jeapordised, and so too would the employment of other staff.