If you choose to plead guilty to a criminal offence you can normally expect to receive a reduction in the length of your disqualification thanks to section 144 of the Criminal Justice Act 2003 which requires the sentencing court to take into account when the guilty plea was entered and the circumstances of the plea.

While it’s widely accepted that pleading guilty reduces your sentence, confusingly though most lawyers also believe that a driving disqualification is not part of the sentence and so cannot be reduced following a guilty plea. This is something we at Oxford Drink Driving Solicitor come across regularly; it is wrong in law and the unwillingness of solicitors and judges in the magistrates courts to objectively consider the status of the driving ban leads to injustice every day. This is also one of the reasons Lord Sumption is wrong to say specialist legal advice is not worth the effort.

What is a sentence?

Before we can decide whether the driving ban is part of the sentence or not we need to know what, in law, a sentence actually is.

The European Court of Human Rights considered just this question in Welch v The United Kingdom. That case was about a drug dealer and the state, successfully, trying to take the assets he acquired through drug dealing away from him. The important points to take away from Welch is that the concept of a sentence or penalty for a crime exists outside of national law and so the ECtHR’s definition trumps anything from a national court. They then go on to tell us that we should consider“… the measure in question is imposed following conviction for a ‘criminal offence’”.  If it is then you consider other factors, such as:

• Nature and purpose of the order;
• It’s characterisation under national law;
• Procedures involved in marking and implementing the order; and
• It’s severity

There is no doubt that drink driving and the associated offences are criminal convictions and that the driving ban is imposed only after conviction for drink driving. So we must go on and address each of the four points raised by the court in Welch.

Is a driving ban a sentence?

What is the nature and purpose of the order

We must look to the Scottish case of Gemmell v HM’s Advocate, in which a five judge panel headed by Lord Justice Clerk considered whether a driving ban was a sentence under Scottish law – it’s worth saying that while there are differences between Scottish and English law there are no differences between the legislation in this particular area.The court held in Gemmell that a driving ban serves two purposes, first to protect the public but second to punish the offender. Lord Justice Clerk described a driving ban as a “deprivation of liberty” in his judgment.

In Malige v France the European Court of Human rights considered whether the deduction of points (apparently in France a driving conviction loses you points rather than gaining them) amounted to a penalty.  The Court echoed the thoughts of our own Court of Appeal in Geale when they said that, “… although the deduction of points has a preventive character, it also has a punitive and deterrent character and is accordingly similar to a secondary penalty.  The fact that Parliament intended to dissociate the sanction of deducting points from the other penalties imposed by the criminal courts cannot change the nature of the measure.”

No senior English court has ever considered whether a driving disqualification is part of the sentence; however, the Court of Appeal in R v Geale came close when they said in passing that “there is or maybe an element of punishment; as is apparent from the fact that, even where the future risk is nil, the statutory provisions require a 12 month minimum period of disqualification”

 

Characterisation under national law

Again, we can see Gemmell telling us that a disqualification is a sentence. But, while Gemmell is persuasive authority in England the courts here are not obliged to follow it.

We can also look at the Road Traffic Offenders Act 1988, which gives courts the power to disqualify a defendant following a drink driving conviction. The part of the Act that conveys this power is entitled “SENTENCE”, so we can be in little doubt about how Parliament characterised the power to disqualify when it enacted it.

Procedures involved in marking and implementing the order

The procedure for making and implementing the order is indivisible from the procedure involved in making and implementing the rest of the sentence.

The court hears about the case, hears mitigation, considered the sentencing guidelines and then proceeds to impose the disqualification along with the rest of the sentence. If the defendant is acquitted there is no power to disqualifying him from driving. This is not always the case in criminal law, for example, a man accused of assaulting his wife can be made subject to a restraining order following acquittal by the court.

It’s severity

The severity of the punishment will vary from person to person, although for some it can mean the end of a person’s livelihood, the loss of their income and the loss of their home. The consequences of this order can be very severe. This was noted in Gemmell by Lord Eassie who said, “[b]eing disqualified from driving is a restriction on the liberty which the offender would otherwise enjoy to drive a motor vehicle; commonly presents substantial inconvenience; and may have financial consequences including the loss of employment.”

Conclusion

It is clear that the European Court of Human Rights takes the view that both driving disqualifications and penalty points are penalties and thus part of the sentence imposed upon an individual.

The Scottish court of appeal has stated very clearly that not only is a disqualification a sentence but that it also falls to be reduced if the offender pleads guilty.

English courts have not explicitly said that driving disqualifications are part of the sentence or that they should be reduced after a guilty plea but given the authorities from Scotland and Europe it seems inevitable that they will eventually have to accept that driving disqualifications can indeed be reduced.