Driving a motor vehicle on the road while disqualified from holding or obtaining a licence is an offence under s 103 of the Road Traffic Act 1988 (RTA 1988).
It is a summary only offence which means that it can only be tried by the magistrates’ court although if linked with more serious offences it may be committed to Crown Court under s 40 of the Criminal Justice Act 1988. The offence will appear on the indictment along with the more serious matters if they arise out of the same set of circumstances.
There is a time limit of three years to bring proceedings for this offence with the caveat that proceedings must be initiated within six months from the date the prosecutor acquired sufficient evidence to prosecute.
Driving while disqualified
A person who is disqualified by a court from holding or obtaining a driving licence is prohibited from driving any motor vehicle on a road for the period of disqualification imposed by the court.
Any driving licence held by the individual is revoked from the day of disqualification and it will be necessary to apply for the return of the licence from the Drivers Vehicle and Licensing Authority (DVLA) shortly before the end of the disqualification period.
Sometimes a person is not only disqualified for a certain period of time but until an extended driving test is passed. If subject to this requirement to take a test of competence, the individual may drive once the actual disqualification is at an end but only if supervised and displaying ‘L’ plates on the vehicle.
Legal definition of driving
Driving is not defined in the RTA 1988 but the courts have held that the act of driving is a physical one which can only be performed by a person: in Richmond London Borough Council v Pinn and Wheeler (1989) the court held the term does not apply to a limited company.
Movement of the vehicle is not essential to amount to driving (DPP v Alderton (2003)).
In R v MacDonagh (1974), the Court of Appeal held that the essence of driving was the driver’s use of the controls for the purpose of directing the movement of the vehicle. In this case, the defendant who was both pushing and steering his car while walking alongside the car was held not to be driving.
Conversely, a defendant who released the handbrake while sitting in the driving seat so the car coasted downhill was found to be driving, even though the keys were not in the ignition.( Burgoyne v Phillips (1982)).
Legal definition of a motor vehicle
A ‘motor vehicle’ is defined in s 185(1) of the Road Traffic Act 1988 and s 136(1) of the Road Traffic Regulation Act 1984 as ‘a mechanically propelled vehicle, intended or adapted for use on roads’. Mechanically propelled is not defined and it is a matter of fact and degree for the court to decide. At its most basic level it is a vehicle which can be propelled by mechanical means. It can include both electrically and steam powered vehicles. Intended or adapted for use depends on what the reasonable person (the reasonable person test) would conclude (Burns v Currell (1963). It matters not what the actual user or manufacturer intended or adapted the vehicle for.
Legal definition of a road
A road for the purposes of this offence is one to which the public have access. It includes footpaths, bridleways and bridges.
Burden of proof
The prosecution must prove beyond reasonable doubt that the person was driving and that he was disqualified. The prosecution does not have to prove the person’s knowledge of either the disqualification or that he was on a road. An individual can be disqualified in his absence by the court but lack of knowledge does not provide a defence. A statutory declaration can be made to the court to the effect that he did not know of the proceedings leading to his disqualification and requesting that the conviction and sentence be set aside. However, even if the court allows this to happen, the disqualification remains valid until the conviction and sentence is set aside.
The maximum penalty is a level five fine (£5000) and six months imprisonment. The court may disqualify for any period of time and impose an extended driving test. The driving licence must be endorsed with penalty points. If no disqualification is imposed, the court will impose six penalty points. Since this offence blatantly flouts a court order it is always regarded seriously by the courts although further aggravating and mitigating factors will be taken into account. For example, if the individual has a string of previous convictions for driving while disqualified, imprisonment will probably result. If the individual was disqualified in his absence and provides a genuine reason why he did not know of the ban, the court are likely to treat the offender more leniently.