What are Mitigating Factors and Circumstances?

When a defendant is in court, the defendant’s solicitor will give the normal plea in mitigation before the defendant is sentenced, just as they would for any other type of offence.  Regarding road traffic offences, this procedure will be followed unless the defendant is seeking to avoid either a mandatory disqualification from driving under the penalty points scheme, or an obligatory disqualification from driving or the obligatory endorsement of his licence with penalty points. In delivering such a plea, the defendant’s solicitor may raise any mitigating factors which they consider relevant to their client’s case.

Mitigating Factors

If the defendant has been convicted of an offence for which the court has a discretion to disqualify him (for example, careless driving), mitigating factors may be raised by the defendant’s solicitor to persuade the court:

1. not to disqualify the defendant, and
2. if the court decides not to disqualify the defendant, the solicitor will argue for the court to impose the lowest number of points the court feels able for the offence (where the court has a discretion as to the number of points that may be imposed), or
3. if the court decides to disqualify the defendant, the solicitor will mitigate to reduce the period of disqualification to the shortest period of time the court feels able to impose, and
4. whether or not the defendant is disqualified, to limit the level of any other penalty that is imposed (such as a fine or an order to pay prosecution costs).

If the defendant is convicted of an offence which carries obligatory disqualification (such as driving whilst over the prescribed alcohol limit), mitigating factors may be raised to persuade the court to limit the period of disqualification to the shortest period of time the court feels able to impose and to limit the level of any financial penalty.

In cases where a serious offence has been committed, for example dangerous driving, mitigating factors may be raised to persuade the court to deal with the matter other than by way of imprisonment. An alternative to imprisonment and custody would be the penalty of a community sentence or a fine instead.

Are there examples of mitigating factors?

Mitigating factors can relate to either the circumstances of the offence itself, or to the personal circumstances of the defendant. Some of the most common points that may be raised by way of ‘offence mitigation’ are:

1. the defendant’s speed was not excessive;
2. there was not much traffic on the road;
3. the defendant was guilty only of a momentary lapse in concentration;
4. only minor damage or injury was caused; and
5. the defendant entered a timely guilty plea.

Examples of points commonly raised as ‘offender mitigation’ – i.e., relating to the personal circumstances of the defendant – include:

1. the defendant’s age and the number of years he has been driving;
2. the defendant having a ‘clean’ driving licence;
3. the defendant’s job requiring the defendant to have a driving licence; and
4. the fact that the defendant drives a large number of miles each year

What are Mitigating Circumstances?

In the case of a defendant collecting 12 or more penalty points on their licence, the defendant will become liable to a mandatory disqualification under the penalty points system for at least 6 months (see our “Driving Ban for Totting Up Points” blog for more information.)  

When a defendant receives such a ban, the defendant will be able to bring forward the argument of mitigating circumstances. If the defendant is able to prove on the balance of probabilities that mitigating circumstances exist, the magistrates va discretion either not to disqualify the defendant from driving under the penalty points system, or to disqualify the defendant for less than 6 months.

Just like mitigating factors, mitigating circumstances can relate to both the offence itself and the personal circumstances of the defendant. However, mitigating circumstances are far more limited in their scope compared to mitigating factors. The following circumstances are examples of what the court will not consider:

1. triviality of any of the offences for which points were imposed.
2. any hardship that will be suffered unless the hardship is exceptional.
3. any mitigating circumstances the defendant has previously raised in 3 years prior to the current conviction. This follows the view that the defendant should not be allowed to escape disqualification by continually using the same argument.

Mitigating Circumstances in Practice

If a defendant is seeking to avoid a disqualification under the penalty points system, they will normally need to prove exceptional hardship (often to someone other than themselves). Burden will be on the defendant to prove that, on the balance of probabilities, exceptional hardship will be caused. The defendant will need to give evidence at court in support of this, and possibly call evidence from others (such as their employer).

Magistrates must find that mitigating circumstances exist before exercising their discretion not to disqualify the defendant. If magistrates find that mitigating circumstances do exist, they may choose either not to disqualify the defendant or to disqualify the defendant but for a reduced period (for example, a disqualification of less than 6 months).

How can we help?

If you have been charged with an offence and are not sure whether you can raise mitigating factors or circumstances in your defence, we are here to help. We can provide you with our expert defence team to represent your case in court and help you avoid a potentially damaging criminal record.

Our motoring offence solicitors will look at all the facts of the accusation and decide what defence and arguments against the driving offence are best for your case. This will also include everything from the facts of the case all the way to whether your actions actually amounted to a criminal act.

Our team of litigators and advocates have many years of experience analysing complex factual scenarios and applying them to often novel areas of law. This ensures that we get the best possible results for our clients. Please do not hesitate to call us on 0208 059 0010 or email us on info@drivingsolicitors.co.uk to get expert legal advice for you and your case.