Special Reasons vs Exceptional Hardship – what’s the difference?

August 1, 2022

Hannah Forsyth 

Motoring crime makes up a huge amount of the work covered by Magistrates’ courts across the country. Many of these offences carry mandatory or discretionary disqualification, meaning that upon conviction, defendants can be banned from driving for long periods of time with a significant knock on effect on their careers and families.

Two of the most common arguments advanced when a defendant is at risk of losing his or her license are Special Reasons and Exceptional Hardship. In either case, a successful argument can make the difference between being disqualified and fined a large amount, or having a much less onerous penalty. The two arguments are frequently confused, however, and in both cases it is essential to know on what basis they are being advanced.

It should also be noted that both arguments require the defendant to have entered a guilty plea to the main offence. This can be a relatively minor offence – low level speeding – but may also encompass more serious offences such as drink or drugged driving.

Special Reasons

A special reasons argument is founded on the basis that the offence has been committed but there are reasons why the mandatory penalty should apply.

The argument must relate to the OFFENCE, not the offender.

In other words, the personal circumstances of the offender are irrelevant (see below for exceptional hardship). Special reasons arguments focus on the circumstances of the offence and aim to persuade the bench that the offender should not be subject to the sentence that would otherwise be imposed by law. There is no statutory definition but the case of R. v Wickens (1958) 42 Cr. App provides the generally accepted definition: the case advanced must:

• be a mitigating or extenuating circumstance;
• not amount in law to a defence to the charge;
• be directly connected with the commission of the offence; and
• be one which the court ought properly to take into consideration when imposing sentence.

There is no hard and fast rule on what might constitute special reasons. Examples which have been permitted in the past include:

• Shortness of distance driven in circumstances where the driver was unlikely to come into contact with other road users;
• Unintentionally committing an offence (for example, unknowingly driving without insurance where this is not covered by s143(3) Road Traffic Act 1988);
• The presence of a real emergency (where it falls short of a defence). In cases such as these, the defendant will need to prove that he or she has explored every other option before driving and could not have foreseen the emergency arising;
• Suffering from eructation (regurgitated alcohol) where this affects a breathalyzer reading. This should be treated with caution – often, experts are called to convince a skeptical bench that defendant suffers from this condition. It has to be proven on the balance of probabilities that the alcohol in the system was not simply the result of excess consumption and that it was the regurgitation that caused the reading above the limit.
• When the defendant has been misled as to the nature of a drink – whether it contains alcohol or the amount. Again, this should be treated with caution as a defendant who simply does not know how much alcohol they have drunk does not qualify for special reasons. Puglsey v Hunter [1973] R.T.R. 284 confirmed that having a drink “spiked” or “laced” can be special reasons but this would have to be sufficient to explain being over the prescribed limit;
• Being given incorrect information from an officer regarding the possible penalty for failing to provide. In Bobin v DPP [1999] R.T.R 375, the defendant was told failure to provide a specimen did not automatically mean being disqualified (which is incorrect). The example given was not found to constitute special reasons in that case but it was recognized that it could amount to special reasons;
• A genuine misapprehension of the speed limit;
• Failing to report an accident where both drivers agreed the accident was too trivial to need reporting;

Examples which have been disallowed include:

• Any circumstances relating to the defendant’s personal background (this is exceptional hardship or personal mitigation);
• Having been barred from driving for a period prior to the hearing;
• Drink driving where this was exacerbated by not eating food;
• Being affected by the presence of an illness or drug which results in excess alcohol in the body. Breathalyser cases are subject to an objective test – if the defendant has more alcohol in his or her system than expected due to illness, this cannot amount to special reasons where he or she has still drunk alcohol.
• Being unaware of alcohol remaining in the system the morning after an evening of heavy alcohol consumption;
• Refusing to provide a specimen when required, even when it was proven that the defendant was not the driver;
• In cases of careless driving, the fact that the nature of the offending was fairly minor does not constitute special reasons automatically if it still constitutes an offence. The case of Nicholson v Brown [1974] R.T.R. 177 made it clear that if the driving in question was sufficiently poor to render the defendant guilty of careless driving, the fact that it was a less severe example of this offence was mitigation but not special reasons of itself. This also applies to exceeding speed limits by a small amount where the speed limit was known.

However, every case is approached on its own merits and its own circumstances and neither of the lists above are exhaustive. There is no guarantee that reasons which were accepted in one case will be accepted in another. For example, shortness of distance driven is not necessarily a viable defence if the defendant was so drunk he should never have been near a car in the first place!

The burden of proof is on a defendant to establish special reasons on the balance of probabilities. It must be supported by evidence and both sides must have the opportunity to call evidence if they wish to. Generally, this is handled as a short contested hearing in the Magistrates’ Court.

If special reasons are not found, there is no reason why the sentence cannot then be mitigated on the basis of the offender’s personal circumstances but it is likely at that point that any mandatory sentence will apply regardless.

Exceptional Hardship

Exceptional hardship arguments are founded on the basis that, perhaps obviously, exceptional hardship will be caused if the defendant is disqualified from driving if they fall to be disqualified under the “totting up” provisions.

The argument must relate to the OFFENDER, not the offence.

The opposite of special reasons, this argument does not address the circumstances of the offence (although you may still wish to in your mitigation) and instead focusses on the potential effect of disqualification on the defendant and anyone else who would be affected by the disqualification.

Under section 35(4) of the RTOA 1988, the following circumstances are NOT exceptional hardship:

• any that are alleged to make the offence or any of the offences not a serious one;
• hardship, other than exceptional hardship; and
• any circumstances taken into account by a court when the offender escaped disqualification or was disqualified for less than the minimum period on a previous occasion within the three years preceding the current conviction when he was liable to be disqualified under s.35(1) of the 1988 Offenders Act.

Again, there is no definitive list of what constitutes exceptional hardship and every case must be advanced on its own merits. Common arguments advanced include the impact of disqualification on employment, including on other employees within a company, or the impact on family and other dependent individuals. The degree of impact on “innocents” (i.e. not the individual who committed the offences) is likely to carry more weight.

However, in every case there is a question of fact and degree – you are heavily dependent on the bench viewing your argument favourably and having sympathy for your client’s position.

There are restrictions on exceptional hardship: whatever arguments you advance, if successful, you cannot use them again for the next three years. The court may still decide to disqualify but simply reduce the period of disqualification to less than 6 months.

Evidence of hardship must be proven to the civil standard – this can be achieved either by calling your client or making submissions and having your client confirm they are true on oath. Documentary evidence should also be provided wherever possible.

Conclusion

It is important to remember that even if successful, neither argument will remove the fact of the criminal conviction from your record. This may have a knock on effect on employment, insurance premiums and even your ability to travel internationally depending on the offence. You may still be liable for other criminal sanctions and costs, depending on the outcome of the case. Both, however, are powerful tools to try to prevent disqualification from driving if advanced properly.

If special reasons or exceptional hardship are found, the court can still impose the mandatory penalty – they have the discretion to depart from the mandatory penalty but are not bound to. In reality, it is likely most benches will not impose the penalty if the argument is successful.

If you have been unsuccessful in advancing either argument before a Magistrates’ Court, it is still possible to appeal the sentence to the Crown Court to be reconsidered, where it will be heard by a Circuit Judge or Recorder, along with two lay magistrates. This can overturn the previous decision but it is worth considering the additional costs incurred if you are unsuccessful, which can run to hundreds of pounds or even thousands of pounds depending on the case.