R v Nicholas Brown

LORD JUSTICE FOXTON: On 21 September 2023, having pleaded guilty at Doncaster Magistrate’s Court, the appellant was committed for the sentence to the Crown Court for two offences of dangerous driving occurring on different occasions, and a number of associated offences. On 12 June 2025, at a hearing at which the appellant was not legally represented, he was sentenced to eight months’ imprisonment suspended for two years, a concurrent two month suspended sentence and disqualified from driving for a period of three years.

The appellant now appeals against the imposition of that three-year period of disqualification with the leave of the single judge.

The appeal concerns the operation of various provisions of the Road Traffic Offenders Act 1988 (“the 1988 Act”) which we now set out.

Section 26 provides:

“(1)

Where a magistrates’ court-

…

(b)

commits an offender to the Crown Court under section 20 of the Sentencing Code or any enactment mentioned in subsection (1) of that section ... to be dealt with for an offence involving obligatory or discretionary disqualification, it may order him to be disqualified until he has been dealt with in respect of the offence.

...

(4)

Subject to subsection (5) below, an order under this section shall cease to have effect at the end of the period of six months beginning with the day on which it is made, if it has not ceased to have effect before that time.

...

(12)

Where on any occasion a court deals with an offender-

(a)

for an offence in respect of which an order was made under this section, or

(b)

for two or more offences in respect of any of which such an order was made

any period of disqualification which is on that occasion imposed under section 34 or 35 of this Act shall be treated as reduced by any period during which he was disqualified by reason only of an order made under this section in respect of any of those offences.”

Section 34(1) provides:

“Where a person is convicted of an offence involving obligatory disqualification, the court must order him to be disqualified for such period not less than twelve months as the court thinks fit unless the court for special reasons thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified.”

By way of brief summary, section 26 provides for the imposition of an interim period of disqualification but expressly states that it shall cease to have effect at the end of a period of six months beginning on the date on which it was made, if it does not cease to have effect before that time. Section 26(12) makes it clear that the duration of that interim disqualification order will be deducted from any period of disqualification imposed under sections 34 or 35 of the Act.

Section 34(3) provides for a longer mandatory minimum period of disqualification than the usual 12 months for offending in certain circumstances, including (i) driving with excess alcohol, and (ii) attempting to drive with a concentration of a specified controlled drug above a specified limit, in cases where the defendant has been convicted of the same type of offence within the preceding 10 years. In those circumstances, section 34(3A) provides for a three-year mandatory minimum period of disqualification.

Finally, section 37 provides that where there is disqualification by order of the court ,the licence is treated as being revoked with effect from the start of the period of disqualification, but when an interim disqualification order is made under section 26, that does not prevent the licence from having effect at the end of the period of disqualification. It states as follows:

“(1)

Where the holder of a licence is disqualified by an order of a court, the licence shall be treated as being revoked with effect from the beginning of the period of disqualification.

(1A)

Where-

the order is made under section 26 of this Act

subsection (1) above shall not prevent the licence from again having effect at the end of the period of disqualification ... “

The effect of this latter provision, combined with section 26(4), is that any interim disqualification order ceases to have effect after six months, with the defendant’s previously becoming effective again immediately at the end of that period.

The appellant was stopped just after midnight on 16 December 2022 while driving erratically, and tests revealed he was over the limits for alcohol and drugs. On a second occasion, at 22:20 on 26 August 2023, he refused to be breathalysed and sought to drive away after he was stopped. He drove through two sets of red traffic lights with his headlights off and was eventually stopped by the police using stop sticks. He tested positive for cocaine at the roadside but refused to provide an analysis at the police station.

When the appellant was brought before the Magistrates’ Court on 21 September 2023, he pleaded guilty to various driving offences and was committed to the Crown Court for sentence. He was subject to an interim disqualification order imposed under section 26 of the 1988 Act. That expired on 20 March 2024. However, the appellant says that he checked the DVLA website which appears to have continued to state after 20 March 2024 that the appellant was suspended from driving “pending sentence”. We note that that was not a correct statement of the legal position by reference to the statutory provisions which we have outlined. The reality was, there was no legal prohibition on the appellant’s driving once the interim disqualification period of six months had come to an end.

The appellant was due to appear for sentencing in the Crown Court on 23 November 2023 but he did not appear, and a warrant was issued. He was eventually arrested on 9 October 2024. When he came up for sentence on 4 December 2024 (having been held in custody in the meantime), the judge deferred sentence for six months to see if the appellant could avoid committing any further offences in that period and indicating that if that was the case the court was minded not to impose a sentence of immediate custody. To his credit the appellant did not re-offend during that period. He was finally sentenced on 12 June 2025, some 19 months after the interim disqualification order was imposed.

The prosecution’s sentencing note submitted that the defendant had to be disqualified for the mandatory three-year minimum period under section 34, noting that the effect of the interim disqualification did not extend beyond six months from the date that it was made.

In his sentencing remarks the judge stated:

“I am enjoined to disqualify you for three years from driving because that is not something that it is open to me to avoid. That, of course, I think, will be reduced by a period of six months because of your interim disqualification that you served.”

The appellant interjected at that point and stated that he had been banned from driving for two years, but the prosecution informed the judge that the correct period of the interim disqualification order was six months. The judge imposed a ban for a period of three years, correctly reflecting the fact that the six-month period would be deducted by an administrative adjustment as noted by this court in R v Louie Rees [2022] EWCA Crim 1710 at [25].

On this appeal the appellant argues that the judge should have reduced the period of disqualification from three years to one year nine months and seven days - that is to say, to a period of three years, less the period for which the appellant thought he was disqualified from driving by virtue of the combination of the interim disqualification order and the information that appeared on the DVLA website. He argues that this should be done on the basis that those matters constitute ‘special reason’ not to impose the mandatory three-year period and therefore fall within the exception for application of minimum periods in section 34(1) of the 1988 Act.

The court was referred to a number of authorities in which similar issues have arisen. We will refer to four.

The first was R v Mascarenas [2018] EWCA Crim 1467. That was a case of dangerous driving in which the defendant was sentenced to a period of disqualification of five years six months in December 2017. The court noted at [14] that any order for disqualification took effect from the date that it was imposed. The sentencing judge had wrongly assumed that the interim disqualification order imposed on 30 June 2016 had continued in force right up until the date of sentence. The Court of Appeal substituted for the sentencing judge’s order a period of disqualification of four years and six months. It will be noted that that comfortably exceeded the statutory minimum period of 12 months applicable in that case.

The second decision is R v Ibrahimi [2023] EWCA Crim 250. That was another case in which an interim disqualification order was imposed under section 26 of the 1988 Act by the Magistrates’ Court when committing the defendant to the Crown Court for sentence. It was a condition of bail imposed by the Magistrates’ Court that the defendant should not drive. In the event, a further 19 months elapsed before the Crown Court sentencing hearing took place. At that hearing, the judge was told that the interim disqualification order had continued for “nearly” 20 months. The judge then imposed a 20-month disqualification period, apparently on the basis that that period would already effectively have been served. When it became apparent that the period imposed by the sentencing judge would run not from the date of the interim disqualification order but from the date of the judge’s sentence, the defendant appealed.

Granting permission to appeal and allowing the appeal, the Court of Appeal noted at [6] that neither counsel appeared to have realised before the sentencing judge that the interim disqualification period had only lasted for six months. The court stated that the sentencing judge’s sentence took effect on the day that it was made and that the period of disqualification then imposed would automatically fall to be reduced by six months by virtue of the adjustment provided for in section 26 of the 1988 Act.

The court noted that the effect of the bail condition had been that the defendant had been legally prevented from driving for the entire period between committal and sentence, but said that it was not possible for the judge, when imposing a disqualification period in the Crown Court, to do what she was effectively trying to do of ensuring the defendant would be allowed immediately back on the road. That is because even a mandatory 12-month disqualification would mean the defendant would effectively be disqualified for a further six months, i.e. the 12 month mandatory period less the six month deduction effected administratively to allow for the duration of the interim disqualification order. In the event, the court held that the appropriate order for the judge to have imposed was a 12-month disqualification order, against which the six month credit would be applied.

The third decision is R v Marshall [2023] EWCA Crim 964. In that case an interim disqualification order was imposed. When the defendant was sentenced in the Crown Court 16 months later, the judge assumed that the disqualification period imposed on sentencing would run from the date of the interim disqualification period, and imposed a period of disqualification of 30 months. The defendant appealed when he discovered that he would only receive a 6 month credit against that period by reason of the interim disqualification order. The Court of Appeal allowed the appeal and substituted a reduced period of disqualification which sought to achieve the intended effect of the judge’s order. But once again, the period of disqualification imposed exceeded or met the mandatory minimum requirement.

The final case s R v Page [2025] EWCA Crim 1133. That was an appeal determined on the papers, following Marshall, where once again the sentence imposed in substitution by this court met the mandatory minimum requirement.

It is common ground that if the appeal in this case is to succeed, the appellant must bring himself within the “special reason” exception to the imposition of the mandatory minimum three-year period of disqualification at the date of sentence. It is therefore necessary to consider whether the matters relied upon, that is to say the appellant’s belief on the basis of what appeared on the DVLA website that the interim disqualification period continued beyond the six-month expiry point, is capable of amounting to a special reason.

We were referred to the decision in Whittal v Kirby [1947] KB 194 at 201 where Lord Goddard provided the following definition of ‘special reason’:

“A ‘special reason’ within the exception is one which is special to the facts of the particular case, that is, special to the facts which constitute the offence. It is, in other words, a mitigating or extenuating circumstance, not amounting in law to a defence to the charge, yet directly connected with the commission of the offence, and one which the court ought properly to take into consideration when imposing punishment. A circumstance peculiar to the offender as distinguished from the offence is not a ‘special reason’ within the exception.”

In R v Wickins (1958) 42 Cr App R 236 at 239-40, Devlin J identified four criteria of a ‘special reason’. First, it must be a mitigating or extenuating circumstance; second, it must not amount in law to a defence; third, it must be directly connected with the commission of the offence; and finally, it must be a matter which the court ought properly to take into consideration when imposing punishment.

The requirement that the special reason be directly connected with the commission of the offence might suggest that a matter arising after the offence would not be capable of meeting the definition. We accept, however, that in a sufficiently exceptional case that is not the position. In R v Anderson [1972] RTR 113, the defendant had been told he would not be prosecuted, as a result of which he had destroyed that part of the blood sample given to him for independent testing. The police then changed their minds and he was prosecuted by reference to the sample retained by the police which was found to be marginally over the limit. The Court of Appeal held that these circumstances did amount to a special reason not to disqualify, but were at pains to state how “very exceptional” the facts of the case were (at p.117). Roskill LJ described the issue as arising from “a series of events which took place after the offence in which the appellant, the offender, had no part whatever” and stated that:

“It is difficult to think that the facts of this case could ever be repeated in another case, or indeed that the conclusion of this court that they constitute special reasons for not disqualifying could ever be a precedent in any other case.”

The exceptionality of Anderson was stressed by May J in Harding v Oliver [1973] RTR 497, in which the Divisional Court found there was no ‘special reason’ not to disqualify where the hospital had lost the defendant’s blood sample. At p.501, May J described Anderson as a “very special case ... in no way to be extended beyond its own very special particular facts”.

In R v Kwame [1975] RTR 106, the defendant had been bailed on various driving-related offences with a condition of bail that the defendant should not drive a motor vehicle. The offences attracted a mandatory minimum 12-month disqualification period, and the issue arose as to whether the fact that the bail condition had prohibited the defendant from driving for a longer period amounted to a special reason not to disqualify. Roskill LJ held that it did not. He posed the following question at page 110:

“Is the imposition of a condition of bail of the kind which the magistrate imposed in this case, which has the result that an accused is compelled to be off the road for a period of time before his conviction, be it long or be it short, capable in law of being a special reason ...”

After reviewing the authorities, he answered that question in the negative, stating that the matters relied upon amounted only to an argument of personal hardship to the appellant, in no way connected with the offence, but rather directly connected with the offender. At p.111, he stated that it was well-established that mere personal hardship could not be taken into account.

Mr Bartholomeusz, in his attractive submissions, sought to distinguish that case on the basis that there was a distinction between bail conditions (which were not imposed after a plea of guilty and might apply in a wide variety of circumstances), and the interim disqualification order made in this case. But we are satisfied that if anything Kwame presented a stronger case for a special reason than this case, because the effect of the bail condition was to create a legal bar to driving which exposed the defendant to legal jeopardy if the condition was breached (breach of a bail condition being itself an independent offence). In this case by contrast there was no legal prohibition or jeopardy on the appellant driving after the six-month period of the interim disqualification order had come to an end.

Finally, mention was made of Myles v Director of Public Prosecutions [2004] EWHC 594 (Admin) in which a Divisional Court comprising Kennedy LJ and Mackay J had to consider whether a 20-month delay in prosecuting the case might amount to a special reason. Rejecting that argument, Mackay J noted that the delay was “unrelated to the commission of the offence itself” and that the “special reason” relied upon in that case was really a species of hardship peculiar to the defendant, something which had been held not to constitute a ‘special reason’.

We take the view that the clear effect of the authorities is that the matter relied upon by the appellant - that he had in practice been prevented from driving for a period of 19 months because the DVLA website suggested that the interim disqualification order remained in force - cannot constitute a special reason. The matters relied upon are not peculiar to the offence but in effect amount to an argument of personal hardship arising from the particular circumstances of the offender and indeed one which depends upon the offender having read and acted upon the information on the DVLA website. It is clear that arguments of that kind do not constitute a ‘special reason’. As we have already explained, the argument here is weaker than Kwame and Ibrahimi where there were legal prohibitions in the form of bail conditions preventing the defendant from being able to drive while the bail condition remained in force.

We would add that there is also some force in the prosecution’s submission in their written argument that, to a degree at least, the appellant was the author of any personal misfortune which may have come his way. Had he attended for sentence on 23 November 2023 and been disqualified at that point, he would automatically have received full credit for the period for which he had been disqualified from driving by the magistrates’ interim order. As it was, he did not come up for sentence until December 2024 because he failed to attend for sentence on 23 November 2023, but absconded. We would also note, in relation to the subsequent period, that he would not in any event have been driving during the period of two months’ custody.

For those reasons, we dismiss the appeal. We note however that the case emphasises the desirability, when imposing interim disqualification orders, of magistrates explaining in clear terms that the order will expire after six months and if no further order is imposed by the sentencing court, that will be the end of that period of disqualification. We have no knowledge as to what was or was not said in this particular case. However, a clear statement to that effect when the interim disqualification order is imposed may assist in preventing a misunderstanding of the kind said to have arisen in this case.