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Totting Up

What is 'Totting Up'?

Any penalty points you receive for a driving offence will remain on your licence for a period of three years however, they cannot be removed until four years after the offence was committed.

If you commit more than one driving offence within a three year period, the penalty points received from each offence are accumulated. If you accrue 12 penalty points on your licence within this time frame, you will be disqualified from driving by the Court for a minimum period of six months however this may be longer if you have been disqualified before. This accruing of 12 penalty points or more is known as ‘Totting Up’.

Are you facing a ban from driving under Totting Up regulations?

  • Have you received 12 or more penalty points during a 3 year period?
  • Are you presently sitting on 9 points and facing a further 3 points for a new offence?
  • Are you facing an offence where the points imposed will likely take you to the 12 point threshold?

What can you do to prevent a totting-up ban?

  • Check that all of the points have been incurred during the three year period. Penalty points remain on your Licence for 4 years but only count in relation to Totting Up for 3 years.
  • Check the date of the offence. It is the date the offence took place that the Court will take into account. It does not matter if the offence was committed while you were sitting on 9 points and by the time the offence gets to court some of your points no longer count. Date of offence is vital.
  • If you are sitting on 9 points and commit a further endorsable offence you will not be able to accept a fixed penalty offer (normally 3 points and £60 fine). This may still be given to you by the Police in error. However, once you attempt to pay the fixed penalty it will be noted you would be liable to Totting Up and the matter will be referred to court.

Timescales – Can totting up bans be time-barred?

In relation to any Road Traffic Offence the Procurator Fiscal has 6 months from the date of the offence to get your case into Court. If this does not happen the case is potentially time-barred and may be thrown out. A legal challenge can be taken to a time-barred case.

What do I do if I receive a Fixed Penalty or Notice of Intended Prosecution from the Police?

  • If you are facing a Totting Up ban you will be unable to formally accept the Fixed Penalty. You will require to appear before a Court. This is because you are facing the prospect of Disqualification and a Court must consider your case.
  • You must indicate who the driver of the vehicle was. If you do not do this there is the possibility you are committing another offence – failing to identify driver (S.172 Road Traffic Act 1988).

What is a Fixed Penalty Notice?

Part 3 of the Road Traffic Offenders Act 1988 deals with the fixed penalty system. If you have committed an endorsable driving offence and are stopped by a police officer and provide your driving licence and counterpart at the time, you will normally be issued with a Fixed Penalty Notice. This is generally 3 penalty points and a fine of £100. Certain offencesare non-endorsable and if it is a minor road traffic offence no penalty points will be received (eg driving with no seatbelt).

If you are facing Totting Up you will be unable to formally accept the Fixed Penalty offer. You will be required to appear before a Court. This is because you are facing the prospect of disqualification and a Court must consider your case. Instead, you will receive a Notice of Intended Prosecution from the Procurator Fiscal. A few months later this will be followed by a citation with a date to attend court.

Will I face disqualification as a result of ‘Totting Up’?

If you have committed a driving offence and the penalty points will take you onto or over the 12 point limit, then you will face disqualification. This disqualification will normally last six months and will start from the day the Court disqualifies you. After the ban ends all penalty points on your licence will also be removed and you will not be required to re-sit a driving test, your licence will simply be returned to you and you can drive again.

What are my options?

When dealing with a possible ‘Totting Up’ disqualification the normal two options available to you are known as ‘Exceptional Hardship’ and ‘Short-term Disqualification’. These are both options that the Court can consider but only after a plea of guilty has been tendered.

What is a short-term ban?

For example, you are a driver who already has 9 points on your driving licence and are stopped by the police for speeding. You are driving 42mph in a 30mph zone. The police are unable to issue the normal fixed penalty ticket (£100 and three points) as you now face disqualification and 3 more points would see you hit the "totting up" limit of 12.

Rather than issue the ticket the police tell you they will send a report regarding the incident to the Procurator Fiscal. A few months later you receive a citation through the post which contains a court date and you need to decide what to do. For the purposes of the example lets imagine you will lose your job if you lose your licence.

One option is to ask the court to impose a short term disqualification rather than the normal six month ban. This is a ban of 56 days or less. The main benefit is the ban being much shorter and it is a period that people can work around or live with.

One disadvantage is that it leaves the 9 points still on your licence. This is different to a "totting up" ban where your points are reset to zero after the ban finishes. Courts are sometimes slow to consider short terms bans in Scotland but they are now being used far more regularly than in the past.

What is Exceptional Hardship?

Our solicitors may be able to help you keep your licence by arguing exceptional hardship. For this to be successful, the hardship suffered as a result of disqualification must be more than what is normally suffered. It must be exceptional. You will have to demonstrate to the Court that disqualification will effect more than just you as an individual therefore, loss of your employment alone is not normally enough to prove exceptional hardship.

If the ban will affect your family members you will be required to demonstrate that the impact would be very significant not just inconvenient. Having to use the bus or train to do things won't be seen by the Court as "exceptional" hardship.

If the ban would effect the running of your own business or the business you work in, if other staff would lose their jobs if you can't drive, if your job is so specialised that only a handful of people in the country can do it then you can try to argue "Exceptional Hardship". But it is important to remember that the legal test that you must overcome to be successful in demonstrating exceptional hardship is a high one.

In order to prove your position you will normally need documentary evidence and you will often be required to give oral evidence and have witnesses to attend Court to support your position.

If successful you will still have the points added to your Licence but you will not face any period of disqualification.

Please remember you will face a fine in relation to the majority of road traffic offences. Fines normally range between £100 and £750. You will be allowed to pay the fine in one lump sum or by weekly instalments.

What are “Special Reasons”

If you are facing Totting Up you can request that the court assign a hearing called a special reasons proof. This is requested as soon as you plead Guilty to the charge. This hearing delays any disqualification and allows an argument to take place before a Judge arguing that “special reasons” exist not to endorse your Licence with points.

Special Reasons are not your personal circumstances, the prospect of loss of employment or inconvenience. The “special reasons” must relate to the offence or nature of the offence. This is often complex and involves legal argument. Special Reasons Proofs are difficult and must be well prepared to succeed. The legal test is a high one is these cases.

How long does it take to go to Court?

The Procurator Fiscal must lawfullyserve a citation giving you a Court date within six months from the date of the offence. If this does not happen then your case is potentially time-barred and a legal challenge can be made on your behalf.

Can I delay the process to retain my Licence for a period?

Yes. You can choose to not accept the fixed penalty offer.

If you have simply been handed a slip (normally pink) from the Police offering you 3 points and a Fine of £60 you can ignore this. You can then “Wait and See” if you are cited to court within the 6 month period. You should be aware that by delaying matters the Court may eventually deal with you in a slightly harsher fashion if it is considered you have added to the delay. This additional penalty is unlikely to be too severe and will normally be an increased financial penalty as opposed to additional points etc.

A “Wait and See” policy is often worth considering. On many occasions cases are not cited to Court within the 6 month period. There is obviously a risk attached to this policy and it should be considered carefully. There is no guarantee case will not simply be cited to court immediately. It is a matter for each individual case but when facing the prospect of  a ban, loss of employment etc it should be considered.

Can I delay the prospect of a ban further once my case gets to court?

Yes. The case can be continued without plea for approximately two months. Thereafter, you can intimate a plea of Not Guilty. This will delay the case for another 3 or 4 months. This will preserve your position and allow you to put your affairs in order.

What should I do now?

More applications for exceptional hardship fail than succeed but instructing a solicitor who knows the area of law will provide you with a real chance of success. At GLPCrime we appear every day in court dealing with road traffic offences. It is advisable that you contact us to instruct a solicitor as soon as possible. We will normally be able to provide you with a free initial consultation within 24 hours.

Is Legal Aid available for ‘Totting Up’?

We are members of The Law Society of Scotland and are registered to provide Legal Aid by The Scottish Legal Aid Board. Legal Aid may be available in certain cases. You should be aware that in many situations involving either exceptional hardship or in cases seeking short term disqualification Legal Aid is rarely available. You should budget for fees between £500 and £1000. We offer fixed payment options and fees can be paid over an agreed period of time.

Recent Cases

Below are five recent cases which GLPC rime has dealt with. All are good examples of the courts attitude to "exceptional hardship" and "short term bans".

  • A doctor was facing a totting up ban. She is a specialist in her field and one of only 18 doctors in Scotland specialising in a particular area of radiology. She lived 25 miles from the hospital and was on call one out of every 11 days. She could be called out in middle of night to scan people involved in road traffic accidents. She also undertook pre cancer screening clinics. Her response time to call outs was critical. The court decided that exceptional hardship was apparent and there was no disqualification.
  • A single parent who lived in an outlying village on outskirts of Glasgow. The train station was an hourly service and 20 minute walk from her house. Bus stops were not close by. She had no local family support to assist. Her eldest child was undertaking her Higher exams at secondary school. Her younger child was a very keen rugby player, playing at a high youth level and training twice a week after school. The application was made on basis the eldest child's Higher exams may be affected as they would need to get public transport to school on their own and would need to attend exam days on public transport. They could be late for exams. The court decided that this was not exceptional hardship and short term ban should not apply. She received a 6 month ban. The court took into account the nature of the offences on the clients’ previous driving record.
  • An English business man working and travelling around Scotland. He covers in excess of 40,000 business miles per annum. He was aged in mid 50s and lived in a village in the south of England in a rural area with the nearest main town 25 miles away. There was a real risk that given his age the client would struggle to find another job. There would also be an impact on contracts he managed around the country. He had excellent work history and drives many, many miles each year. References from his employer were produced to confirm he would lose his job if banned for six months. The court decided that exceptional hardship was apparent and he received no disqualification.
  • A taxi driver who had a contract to drive children with learning difficulties to and from school. The children had specific difficulties that meant they did not react well to change. A change of driver would be very significant for the children and would affect them. Documents confirming the contract with the local authority were obtained and lodged with court. A colleague gave evidence of the specific nature of the job being carried out and the potential impact on children if our client could no longer fulfil the contract if he was unable to drive. The court decided that exceptional hardship was apparent and no disqualification.

How much will a Lawyer cost or should I deal with the case myself?

Many road traffic matters are fairly straightforward and in certain situations can be dealt with without a lawyer. However, when facing Totting Up a Lawyer will be a big advantage to any accused person. Our First Consultation is FREE. This email address is being protected from spambots. You need JavaScript enabled to view it.