Harriet Harman’s Fine, or Does this look right?

(Obvious disclaimer: This is not legal advice. This is a personal opinion. If you are accused of a road traffic offence, you should seek independent legal advice from a qualified professional. Go here to find a solicitor.)

Harriet Harman’s troubled relationship with road traffic law continues, with a guilty plea to a charge of driving without due care and attention.

In 2003, she was banned from driving for 7 days and fined £400 for driving at 99mph on the M4. At the time, she was Solicitor General – deputy chief legal advisor to the Government.

In 2007, she received a £60 fixed penalty notice for driving at 50mph in a 40mph zone – specifically a temporary speed limit for roadworks on the A14. Harman failed to pay the fine for five months (the normal deadline is 28 days), was summonsed to appear before Ipswich Magistrates Court, and only paid the fine on the morning of the hearing. Despite this, the CPS chose to drop the case – leaving her with the fine and 6 penalty points.

Her latest charges arose from an accident on 3 July 2009. Manoeuvring out from between two parked cars whilst making a constituency visit, Harman hit one of them. Witnesses claimed at the time – and the prosecutor said in Court – that she was talking on her mobile phone at the time.

A police investigation followed, in large part because Harman left the scene, allegedly telling witnesses:

“I’m Harriet Harman – you know where you can get hold of me.”

The CPS did not pursue charges of leaving the scene of an accident without exchanging particulars or failing to report an accident to the police, but decided there was sufficient evidence to charge driving without due care and attention, and driving while using a mobile phone.

When the case came to court, the charge of driving while using a mobile phone was dropped, and Harman pled guilty to driving without due care and attention. She was fined (£350) and given 3 penalty points.

Which to me seems a bit lenient.

Not because the Magistrates should have made an example of her, mind you. There’ll be plenty of people keen to see a prominent Labour MP and minister up in front of the bench. There will also, unfortunately, be plenty who are pleased to see a prominent female politician – especially one who is currently Minister for Women and Equality – pulled down a little.

No, my opinion that it looks lenient is a professional one – as a solicitor, I would have expected a more severe penalty to be imposed in the reported circumstances.

All you need to do to understand why is to consider the sentencing guidelines.

When calculating fines, the Sentencing Guidelines use “Bands”, which differ from the “Levels” set out in statute. Levels set absolute maximum fines, whilst Bands fix ranges within which particular sentences should fall. There are three Bands – A to C – which correspond to different rungs of seriousness within each offence.

The lowest rung for driving without due care and attention is based on a “Momentary lapse of concentration or misjudgement at low speed”, and the middle rung is “Loss of control due to speed, mishandling or insufficient attention to road conditions, or carelessly turning right across on-coming traffic”. The Top rung of “Overtaking manoeuvre at speed resulting in collision of vehicles, or driving bordering on the dangerous” is clearly inapplicable here, but given the fact that Harriet Harman was apparently talking on a mobile phone at the time, the middle rung (“Loss of control due to…insufficent attention to road conditions”) might apply.

As fines as meant to be proportionate to an offender’s means (so that a wealthy individual receives a proportionately greater fine than someone with little or no income), each Band is expressed in terms of a percentage of the offender’s weekly income after tax and NI. A “Monetary lapse…” would result in a Band A fine (25-75% of weekly income), whilst “Loss of control due to…insufficient attention to road conditions” would result in a Band B fine (75% to 125% of weekly income).

Having identified the applicable Band, the magistrate has then to consider any factors which increase or decrease culpability, or increase the harm done by the offence, and reflect these in the sentence. The Sentencing guidelines specifically identify “Carrying out other tasks whilst driving” (e.g. conducting a conversation on a mobile phone, as alleged by the prosecutor to the court) as a factor increasing culpability for this offence. In addition, previous relevant convictions are factors for all offences, and as noted above, Harman has a previous conviction in 2003 for speeding (penalty notices, such as the one she received in 2007, aren’t relevant).

At this stage, the magistrate has to take account of offender mitigation. This can include things like remorse, and early admissions of guilt (for example at a police interview). It’s not clear whether there was any offender mitigation in this case, and it is difficult to see how there could be any – given that in November, when the CPS announced there was sufficent evidence to prosecute, Harman’s spokeswoman said that the minister:

“…strongly refutes the allegations and will deny the charges.”

Only once offender mitigation has been consider should a discount for a guilty plea be applied. Again, it is relevant that in November Harman was apparently denying the charges. The maximum reduction of one-third should only be applied where the offender indicated a willingness to plead guilty at the first reasonable opportunity. Pleading guilty once a trial date is set attracts a discount of just one-quarter, whilst a guilty plea “at the door of the court” should attract a discount of only one-tenth. There was no indication last night that Harman was planning to plead guilty, although an indication to that effect might already have been made to the CPS.

Working through this calculation, the leniency of the penalty become clear. Harman appears  to have received a fine lower than the starting point (50% of weekly income), even assuming full credit reduction for a guilty plea (one-third).

Put it another way: Assuming Harman earns a notional £125,000 a year (probably somewhat low), she has a weekly income after tax and NI of at least £1,500. Based on the Band A starting point of 50% of weekly income, and a full credit reduction for a guilty plea of one-third, this indicates a fine of £500 – some 30% more than was actually imposed.

It’s possible that the 2003 conviction was not treated as relevant due to its age. It is even possible that a reduction in culpability was applied on the basis of the low speed of the accident, but it would seem curious to apply such a reduction at the same time as discounting the alleged mobile phone use. The £350 fine imposed strongly suggests no uplift for that or her previous conviction for speeding.

In summary, a £350 fine and 3 penalty points appears significantly more lenient than might be expected – not because she’s a politician, or because she’s minister, or because she’s a she, but simply on the basis of the Sentencing Guidelines for the offence she admitted.

It would be interesting to know the full reasoning behind the sentencing decision in this case, if only to dispel the appearance of leniency.