The Law: ‘Totting Up’ Offence

‘Totting Up’ refers to a driver accumulating 12 or more penalty points on their licence within a period of three years.

Incurring 12 or more penalty points within a three-year period means a minimum period of disqualification must be imposed (a ‘totting up disqualification’) – s.35 Road Traffic Offenders Act (RTOA) 1988.

The minimum period is:

• six months if no previous disqualification is to be taken into account
• one year if one previous disqualification is to be taken into account
• two years if more than one previous disqualification is to be taken into account.

For more information on the offence of ‘Totting Up’, please visit https://www.jmw.co.uk/services-for-you/motoring-law/totting-up-disqualifications .

‘Totting Up’ Defence

In circumstances whereby disqualification of a driver may negatively impact others (such as dependant relatives or job requirements for a vehicle), the defendant may plead exceptional hardship to retain their licence or reduce the length of disqualification imposed upon them.

Discretionary Disqualification

When an offender is convicted of an endorsable offence (i.e. an offence that attracts penalty points on their licence), the Court has the discretion to disqualify the driver for up to 56 days, instead of imposing penalty points.

Recent Discussions

The Sentencing Council division of the Ministry of Justice have recently argued that some Courts were failing to consider a motorists driving history, when imposing a punishment for a driving offence.

In practice, the result of this is that where the Magistrates’ should impose penalty points, which would result in a ‘totting up’ disqualification period (as above), they are instead imposing a discretionary disqualification (less than 56 days).

In summary, it is being argued that the Magistrates’ are not considering previous disqualifications and/or points of the driver, and are instead only focussing on the offence and subsequent 3 points before them. In consequence, drivers in cases such as speeding, are being disqualified for a maximum of 56 days, when in reality the disqualification imposed should be for a minimum of 6 months.

The Impact on You

The Council have begun amendments which are set to be introduced in April 2023. They aim to address two things:

1. Removing the availability of a shorter discretionary disqualification to the Magistrates’ and instead ensuring Courts take into consideration driver history and impose the mandatory minimum 6 months for a ‘totting up’ offence. This therefore means that if you have accrued points which will take your total points to 12 or more, your defence team will have difficulty convincing the Court to impose a discretionary disqualification circumventing the totting up minimum periods (as above); and
2. 'Iron out’ the confusion surrounding the exceptional hardship defence, preventing the defence being used in cases whereby disqualification would be an ‘inconvenience’ to the driver.

If you have received a prosecution for a driving offence or are concerned that you may be at risk of losing your driving licence, please speak with one of our specialist solicitors on 0345 872 6666 or complete our online enquiry form and a member of the team will call you back at a convenient time.

Co-authored by Jade Halliday-Mitchell.