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Driving Disqualification

Disqualification from driving

In certain circumstances, a person may be disqualified from holding or obtaining a driving licence.

A person appearing before a court may be disqualified:

• under section 163 of the Sentencing Act 2020 - general power to disqualify offender in addition to dealing with them in any other way
• under section 164 of the Sentencing Act 2020 - motor vehicle used by person convicted, or another, for the purpose of committing or facilitating the commission of the offence
• under section 34 of the Road Traffic Offenders Act 1988 - offences attracting obligatory or discretionary disqualification, or
• under section 35 of the Road Traffic Offenders Act 1988 - the commission of repeated offences attracting the imposition of penalty points under the 1988 Act (the 'totting-up' procedure).

Sections 163 and 164 of the Sentencing Act 2020 apply to offenders convicted on or after 1 December 2020. In respect of offenders convicted before that date, the equivalent provisions are sections 146 and 147 of the PCC(S)A.

General power to disqualify

Section 163 of the Sentencing Act 2020 provides that a court may impose a driving disqualification order on a person convicted of an offence instead of or in addition to dealing with them in any other way. The power is available to the Crown Court and magistrates' courts and applies in relation to any offence.

The order provides both an additional punishment and a preventive measure. However, there must be sufficient reason for the disqualification. The following are examples of cases in which such orders have been imposed:

• Cliff [2004] EWCA Crim 3139 - the offender had admitted that before committing affray he had driven a car whilst affected by drink or drugs or both.
• Bye [2005] EWCA Crim 1230 - disqualification for 12 months in conjunction with a prison sentence of 8 months was upheld where the offender got out of their car and attacked another motorist.
• Waring [2005] EWCA Crim 1080 - disqualification for 18 months in conjunction with a prison sentence of 4 months for escape from lawful custody was upheld. The offender had been stopped by the police, provided a positive breath test but, in the process of being taken to the police station, had jumped from the police car and escaped. He thereby avoided a secondary breath test and any possibility of being prosecuted for driving with excess alcohol.
• Sofekun [2008] EWCA Crim 2035 - disqualification upheld where the offender had cannabis concealed within the bonnet of their car in small bags ready for supply.

Vehicle used for purposes of crime

Section 164 of the Sentencing Act 2020 provides powers to impose a driving disqualification order in two sets of circumstances.

Under section 164(1) and 164(2) SA 2020, the Crown Court may impose a driving disqualification order where:

• a person is convicted on indictment (this includes where the person is committed to the Crown Court for sentence and the Crown Court has the power to deal with them as if they had been convicted on indictment, see sections 21, 22 and 23 of the Sentencing Act 2020 for where this applies), and
• the offence is punishable with imprisonment for 2 years or more, and
• the court is satisfied that a motor vehicle was used (by the offender or by anyone else) for the purpose of committing the offence, or to facilitate the commission of the offence (which includes any taken steps after the offence was committed to dispose of any property to which the offence relates or to avoid apprehension or detection).

Under section 164(3), any court may impose a driving disqualification order where:

• a person is convicted before the court of common assault or any other offence involving an assault (including an offence under Part 2 of the Serious Crime Act 2007, which relates to encouraging or assisting crime), and
• the court is satisfied that the assault was committed by driving a motor vehicle.

Offences attracting obligatory disqualification

For detailed guidance on road traffic offences see the Road Traffic legal guidance.

Under section 34 of the Road Traffic Offenders Act 1988, where an offence is subject to obligatory disqualification the court must disqualify unless it finds special reasons not to do so.

Under section 97 of and Schedule 2 to the Road Traffic Offenders Act 1988, the following offences are subject to obligatory disqualification:

• causing death by dangerous driving 
• causing serious injury by dangerous driving
• dangerous driving
• causing death by careless or inconsiderate driving
• causing death by driving whilst unlicensed or uninsured 
• causing death by driving whilst disqualified
• causing serious injury by driving whilst disqualified
• causing death by careless driving when under influence of drink or drugs
• driving or attempting to drive when unfit to drive through drink or drugs
• driving or attempting to drive with excess alcohol
• driving or attempting to drive with a concentration of a specified controlled drug above a specified limit
• failing to provide a specimen for analysis (driving or attempting to drive)
• failing to allow a specimen to be subjected to a laboratory test
• motor racing or speed trials on public ways
• Using vehicle in dangerous condition (if committed within three years of a previous conviction for the same offence)
• manslaughter by the driver of a motor vehicle
• aggravated vehicle taking.

Offences attracting discretionary disqualification

The court may also disqualify a person under section 34 of the Road Traffic Offenders Act 1988 for an offence carrying discretionary disqualification.

Under section 97 of and Schedule 2 to the Road Traffic Offenders Act 1988, the following offences are subject to discretionary disqualification:

• stealing or attempting to steal a motor vehicle
• taking a motor vehicle without consent, or being carried 
• going equipped to steal a motor vehicle
• wanton or furious driving (section 35 of the Offences against the Person Act 1861), and
• most endorsed offences under the Traffic Acts which do not attract obligatory disqualification (see part 1 of Schedule 2 of the Road Traffic Act 1988).

Penalty Points and 'totting up'

When an offender is convicted of an offence subject to obligatory endorsement, the court must determine the number of points to be awarded and these points are added to the offender's licence.

Under section 35 of the Road Traffic Offenders Act 1988, if the total number of points to be taken into account on that occasion is 12 or more, the defendant must be disqualified unless the court is satisfied, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction and thinks fit not to order him to be disqualified.

Period of disqualification and extended driving tests

In general, a court may impose disqualification for such a period as it thinks fit. However, this is subject to various minimum period requirements.

Under section 34 of the Road Traffic Offenders Act 1988, for offences subject to obligatory disqualification the minimum period is 12 months unless the court for special reasons thinks fit to order a shorter period. However, there are longer minimum periods for some offences subject to obligatory disqualification:

• offences of manslaughter by the driver of a motor vehicle, causing death by dangerous driving, causing serious injury by dangerous driving, causing death by driving whilst disqualified, causing serious injury by driving whilst disqualified, and causing death by careless driving whilst under the influence of drink or drugs: two years, unless the court for special reasons thinks fit to order a shorter period
• an offence subject to obligatory disqualification where the person has been disqualified two or more times for periods of 56 days or more in the three years preceding the commission of the present offence (subject to certain exceptions set out in section 34(4A) and not counting any extension period towards the 56 days - see below regarding extension periods): two years, unless the court for special reasons thinks fit to order a shorter period
• offences of driving with excess alcohol and various other offences relating to driving under the influence of drink or drugs (set out in section 34(3)), where the defendant has been convicted such an offence in the 10 years preceding the commission of the present offence: three years, unless the court for special reasons thinks fit to order a shorter period.

Under section 36 of the Road Traffic Offenders Act 1988, where a person is disqualified under section 34 for an offence of manslaughter by the driver of a motor vehicle, causing serious injury by dangerous driving, dangerous driving, causing death by driving whilst disqualified, or causing serious injury by driving whilst disqualified, that person must also be disqualified until they have passed an extended driving test.

Under section 35 of the Road Traffic Offenders Act 1988, where a person is disqualified under the 'totting up' procedure, the minimum period of disqualification is six months. However, if a previous disqualification of 56 days or more was imposed within three years of the commission of the latest offence (not counting any extension period towards the 56 days - see below regarding extension periods), the minimum period is one year. If there are two or more such disqualifications imposed within three years of the commission of the latest offence, the minimum period is two years. Where there are grounds for mitigating the normal consequences and the court thinks fit it may order a shorter period of disqualification.

There are particular provisions that apply where an offender is sentenced both to disqualification and a custodial sentence or is already serving a custodial sentence:

• Where a court orders disqualification and also imposes a custodial sentence for the same offence, the disqualification must include an extension period: see section 35A of the Road Traffic Offenders Act 1988 in respect of disqualification under section 34 or 35 of that Act, and section 166 of the Sentencing Act 2020 in respect of disqualification under section 163 or 164 of that Act (or, for offenders convicted before 1 December 2020, section 147A PCC(S)A 2000 in respect of disqualification under sections 146 and 147 PCC(S)A) 2000. The extension period depends on the type of custodial sentence imposed, but broadly corresponds to the period that the person might be expected to spend in custody - see section 35A(4) of the Road Traffic Offenders Act 1988 and section 166(5) of the Sentencing Act 2020 for details (or section 147A(4) PCC(S)A 2000 where applicable). (Note that, as a result of section 141 of the Police, Crime, Sentencing and Courts Act 2022, where a person is serving a sentence to which section 244ZA or 247A of the Criminal Justice Act 2003 applies, the extension period is increased to the period currently specified in those sections even if the extension period when the sentence was imposed was shorter.)
• Where a court proposes to order disqualification for one offence and proposes to impose custody for another offence or the person is already serving a custodial sentence, in determining the period for which the person is to be disqualified the court must have regard to the diminished effect of disqualification as a distinct punishment if the person who is disqualified is also in custody for another offence, so far as it is appropriate to do so: section 35B of the Road Traffic Offenders Act 1988 in respect of disqualification under section 34 or 35 of that Act and section 167 Sentencing Act 2020 in respect of disqualification under section 163 or 164 of that Act (or, for offenders convicted before 1 December 2020, section 147B PCC(S)A 2000 in respect of disqualification under sections 146 and 147 PCC(S)A) 2000.

The following checklist was set out in Needham and others [2016] EWCA Crim 455 regarding how to approach sections 35A and 35B RTOA 1988, and the same reasoning should apply to sections 166 and 167 SA 2020:

"Step 1 - Does the court intend to impose a "discretionary" disqualification under section 34 RTOA 1988 or section 35 RTOA 1988 for any offence?

YES - go to step 2

Step 2 - Does the court intend to impose a custodial term for that same offence?

YES - section 35A RTOA 1988 applies and the court must impose an extension period  for that same offence and consider step 3.

NO - section 35A RTOA 1988 does not apply at all - go on to consider section 35B RTOA 1988 and step 4

Step 3 - does the court intend to impose a custodial term for another offence (which is longer or consecutive) or is the defendant already serving a custodial sentence?

YES - then consider what increase ("uplift") in the period of "discretionary disqualification" is required to comply with section 35B(2) and (3) RTOA 1988. In accordance with section 35B(4) RTOA 1988 ignore any custodial term imposed for an offence involving disqualification under section 35A RTOA 1988.

Discretionary period + extension period + uplift = total period of disqualification

NO - no need to consider section 35B RTOA 1988 at all

Discretionary period + extension period = total period of disqualification

Step 4 - does the court intend to impose a custodial term for another offence or is the defendant already serving a custodial sentence?

YES - then consider what increase ("uplift") in the period of "discretionary disqualification" is required to comply with section 35B(2) and (3) RTOA 1988.

Discretionary period + uplift = total period of disqualification."

Under section 42 of the Road Traffic Offenders Act 1988, a person can ask the court to reduce their disqualification period after they have been banned from driving for:

• 2 years if the disqualification was for fewer than 4 years (disregarding any extension period)
• half the disqualification period (disregarding any extension period) if the disqualification was for at least 4 but less than 10 years (disregarding any extension period), or
• 5 years in any other case.

Mutual recognition of disqualification

There is mutual recognition of driving disqualification between the United Kingdom and the Republic of Ireland. For more information, see the prosecution guidance on Mutual Recognition of Driving Disqualification.

See.
https://www.cps.gov.uk/legal-guidance/sentencing-ancillary-orders