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Parliament urged to close 'exceptional hardship' loophole that lets motorists who go on to kill keep licences

One in five drivers facing automatic ban allowed to keep driving after pleading exceptional hardship

A cyclist and a motorcyclist are among road users killed in recent years by motorists who had been allowed by courts to keep driving after persuading them that 'exceptional hardship' would ensue if they lost their licences – a loophole exploited by more than 8,000 motorists each year according to Cycling UK, which says the Police, Crime, Sentencing and Courts Bill currently before the House of Lords affords an opportunity to close that loophole.

Following a Freedom of Information request to the DVLA, the charity found that between 2017-21, a total of 142,275 motorists in England – an average of 35,569 each year – were disqualified from driving under the so-called “totting-up” procedure, ie amassing 12 or more penalty points during a three-year period.

But a Parliamentary question from Labour peer and road safety campaigner Lord Berkeley found that from 2011-20, there had been 83,581 cases of motorists escaping a ban after pleading mitigating circumstances – equating to more than one in five of the total who amass 12-plus points each year being allowed by the courts to continue to drive.

He said: “Exempting one in five drivers is wrong. It should be one in five hundred.

“At present, anyone who can afford a loophole lawyer can join the 85,000 drivers who get off.

“A better alternative would be for drivers to think of the consequences before they break the law.”

A report published by Cycling UK has highlighted cases in which vulnerable road users were killed by motorists who had earlier managed to avoid being disqualified from driving after claiming that they would face “exceptional hardship” if they were banned.

One was that of 48-year-old father of two Lee Martin, who was killed in August 2015 by van driver Christopher Gard while riding his bike on the A31 in Hampshire in August 2015.

Gard, who was driving at 65mph and texting at the wheel, had escaped a driving ban just six weeks beforehand after amassing 12 penalty points in the space of 12 months, all related to using a mobile phone at the wheel.

The driver, who had other convictions for mobile phone use but had repeatedly been allowed to keep his licence, was jailed for nine years for causing the death of Mr Martin by dangerous driving.

> Texting driver who killed cyclist fails in appeal to have sentence reduced

Another case involved Louis McGovern, aged 30, who was killed as he rode his motorbike home from work in Stockport in January 2019 when he was struck by van driver Kurt Sammon, who had also been texting and making a phone call while driving shortly before the crash.

Sammon, aged 55, had been imprisoned for six months in 2004 for killing a 13-year-old schoolboy. He had no insurance or MOT at the time of that fatal crash and also failed to stop or report it.

Yet three months before killing Mr McGovern – he would later be jailed for seven years for causing death by dangerous driving, with a prosecutor at trial saying he had on of the “worst driving records I've ever seen” – magistrates had allowed him to keep his driving licence after he had reached 12 points, with the motorist convincing them that losing it would affect his car valeting business and prevent him from caring for his mother.

In a letter to North Cheshire magistrates, Mr McGovern’s father Mark asked why, given Sammons’ prior history, they had allowed the driver to keep his licence.

In reply, the magistrates said: “No formal risk assessments are carried out, however magistrates are made aware of the details of any endorsements that are on an individual’s driving licence, though it doesn’t include details as to the facts of those cases.”

Duncan Dollimore, Cycling UK’s head of campaigns, said: “We’ve got courts treating inconvenience as exceptional hardship and a legal loophole that costs lives is making a mockery of the supposedly automatic totting up ban.

“We’ve no assessment of risks when magistrates make these decisions to allow someone to carry on driving, but they are accepting bland assertions that losing a licence will cause them difficulties.

“It’s families such as Louis McGovern’s and Lee Martin’s who really suffer exceptional hardship when the courts put the retention of someone’s licence to drive above road safety, allowing irresponsible people to carry on driving until they cause further harm or death on the roads,” he added.

Cycling UK, which is campaigning for the loophole to be closed, has put in place an online action enabling people to write to their MPs “#encourage them to take action to help fix our failing traffic laws.”

Simon joined road.cc as news editor in 2009 and is now the site’s community editor, acting as a link between the team producing the content and our readers. A law and languages graduate, published translator and former retail analyst, he has reported on issues as diverse as cycling-related court cases, anti-doping investigations, the latest developments in the bike industry and the sport’s biggest races. Now back in London full-time after 15 years living in Oxford and Cambridge, he loves cycling along the Thames but misses having his former riding buddy, Elodie the miniature schnauzer, in the basket in front of him.

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