Driving while Disqualified

Driving while Disqualified

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Introduction

The offence is contrary to s103 Road Traffic Act 1988. It is committed if you :

  • Drive a motor vehicle
  • On a road
  • Whilst disqualified from holding a licence

In almost all cases these definitions don’t cause a problem. But there is always scope for argument on the margins.

Drives – “The essence of driving is the use of the driver’s controls in order to direct the movement, however that movement is produced.” Whilst there “are an infinite number of ways in which a person may control the movement of a motor vehicle, apart from the orthodox one of sitting in the driving seat and using the engine for propulsion. He may be coasting down a hill with the gears in neutral and the engine switched off; he may be steering a vehicle which is being towed by another. As has already been pointed out, he may be sitting in the driving seat while others push, or half sitting in the driving seat but keeping one foot on the road in order to induce the car to move. Finally, as in the present case, he may be standing in the road and himself pushing the car with or without using the steering wheel to direct it.”

It is not the case that anything goes – “Although the word ‘drive’ must be given a wide meaning, the courts must be alert to see that the net is not thrown so widely that it includes activities which cannot be said to be driving a motor vehicle in any ordinary use of that word in the English language” (R v MacDonagh 59 Cr App R 55)

Vehicle – a ‘motor vehicle’ is defined in s185 Road Traffic Act 1988 as ““a mechanically propelled vehicle intended or adapted for use on roads” (but not an invalid vehicle). For an example of the issues that can arise, see DPP v King [2008] EWHC 447 (Admin) which held that a ‘City Mantis’ electric scooter is a vehicle.

Road – this is defined in s192(1) Road Traffic Act 1988 as being “in relation to England and Wales, means any highway and any other road to which the public has access, and includes bridges over which a road passes“.

This will always be a question of fact for the magistrates. For example, a railway car park will not generally be a ‘road’ (Brewer v DPP [2004] EWHC 355 (Admin))

The offence is summary only.

Mental Element

The offence is one of strict (in fact absolute) liability – it doesn’t matter if someone knows whether they are disqualified or not. Of course, someone generally knows whether they have been or not, but there are circumstances where it could be an issue:

They have been disqualified in their absence – it is possible that this could happen, either because the individual was unaware of the proceedings, or they had pleaded guilty by post for example. The general rule is that, for obvious reasons, such people should not be prosecuted. See here for CPS guidance. If the defendant can show that he was not aware of the disqualification, then it is likely that the prosecution would be dropped as not being in the public interest.

They were disqualified pending a new test – normally if somebody is disqualified then they are entitled to resume driving once the period of disqualification is finished. In certain circumstances however, the Court may order that someone is disqualified for a period of time, but they cannot drive until they have passed an extended test.

It happens sometimes that people don’t realise this (although sometimes it is a case of willful blindness on their part)

They got the dates wrong – If someone gets the date when their disqualification wrong then they may commit the offence unwittingly. In those circumstances, whilst it should be mitigation for them, it is likely that the Court will not think so.

It is also not a defence to believe that you were not driving on a road (R v Miller [1975] 1 WLR 1222) or that what you were driving is not a ‘motor vehicle’.

Sentence

The maximum sentence is six month in prison and/or a Level 3 fine. You can be disqualified again or get 6 penalty points on your licence (if there is no disqualification). In either case, the licence should be endorsed.

The Magistrates’ Court Sentencing Guidelines apply – there are three categories depending on how much of the ban has been served:

Whole ban served (second of the cases above) – starting point after a trial is Low Level Community Order, with a range of a fine to a Medium Community Order

Lengthy period of ban served – High Level Community Order with a range of Medium Community order to 12 weeks imprisonment

Recently imposed ban – 12 weeks prison as a starting point, with a range of a High Community Order up to six months in prison.

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Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

2 COMMENTS

  1. One of the worst moments I had in the Chair in a Magistrates’ court is having to pronounce a sentence of immediate imprisonment on a mother of young children – driving with excess alcohol while disqualified for, you’ve guessed it, driving with excess alcohol.

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