An investigation conducted by Durham Police has concluded that Boris Johnson’s senior advisor Dominic Cummings did breach the government’s lockdown rules in his trip to Barnard Castle.
In an official statement, Durham Police concluded that Mr Cummings’ trip to Barnard Castle was a breach of the regulations that “would have warranted police intervention” at the time.
Durham Police say that whilst they did not consider Mr Cummings’ journey from London to Durham as having breached lockdown rules, they had “examined the circumstances surrounding the journey to Barnard Castle” and found that it would have required them to excercise their powers under the government’s Coronavirus legislation.
The statement went on to state that:
“Had a Durham Constabulary police officer stopped Mr Cummings driving to or from Barnard Castle, the officer would have spoken to him, and, having established the facts, likely advised Mr Cummings to return to the address in Durham.“
Many of the government’s supporters have pointed to the fact that Durham Police’s statement says that Mr Cummings “might” have breached the rules – but this phrasing, whilst seeming important, is actually not significant.
As legal legend, The Secret Barrister, explains on Twitter:
“Lots of excitement about “might”.
The reason for this is that the police don’t determine breaches; they form an opinion. If that opinion is disputed, a court will decide.
In this context, “might” means the police concluded it *was*. Hence they say they would have sent him back.”
Lots of excitement about “might”.
The reason for this is that the police don’t determine breaches; they form an opinion. If that opinion is disputed, a court will decide.
In this context, “might” means the police concluded it *was*. Hence they say they would have sent him back. https://t.co/uciulov4l6
— The Secret Barrister (@BarristerSecret) May 28, 2020
Indeed, this interpretation is also backed up by legal writer David Allen Green, who posted an in-depth Twitter thread explaining exactly why it is not significant:
Power of police to direct a person home is under regulation 8(3)(a): https://t.co/f17oc8Ebf1
To exercise power, police must be consider there was a breach of 6(1) – there was no reasonable excuse
1.
— david allen green (@davidallengreen) May 28, 2020
If the Durham police statement means that an officer would have exercised the 8(3)(a) power to direct Cummings home then it would mean the officer would have considered Cummings to have been committing an offence
2.
— david allen green (@davidallengreen) May 28, 2020
In my view, that would mean that, had Cummings refused to follow the advice, then such a direction would have been given
3.
— david allen green (@davidallengreen) May 28, 2020
The “might” in the statement means that the police would have “considered” that there was a breach for the exercise the 8(3)(a) power
It would not be for the police officer to determine criminal liability: that is a matter for the court
4.
— david allen green (@davidallengreen) May 28, 2020
The Durham police statement is confusingly worded
But what it means, legally, is that a police officer would have been in a position to exercise their power under 8(3)(a), which in turn means they would have considered Cummings to have committing an offence
5.
— david allen green (@davidallengreen) May 28, 2020
Not all breaches of the prohibition lead to prosecutions or fines
Some sanctions, such as a direction to return under 8(3)(a) is very mild
But it means that a police would have “considered” a minor offence was being committed
6.
— david allen green (@davidallengreen) May 28, 2020
The key word is “consider”
And so if one was to say, on the back of the Durham statement, that Durham police considered that Cummings had committed an offence, then that would be correct and libel-safe
7.
— david allen green (@davidallengreen) May 28, 2020
It does not mean a criminal offence was or was not committed, or that there is a criminal sanction or penalty
8.
— david allen green (@davidallengreen) May 28, 2020
The Prime Minister, numerous Cabinet Ministers, and even the Attorney General had previously defended Cummings’ actions as “legal” and “responsible“.
The Secret Barrister says that the Attorney General Suella Braverman should now resign for defending Mr Cummings’ behaviour:
This, I’m afraid, is a resigning issue for @SuellaBraverman. She has, through a wholesale failure to understand her role as Attorney General, politicised an independent criminal inquiry, presupposing the outcome and embarrassing the CPS.
— The Secret Barrister (@BarristerSecret) May 28, 2020
Despite the findings of Durham Police that they consider Mr Cummings to have breached the rules, Downing Street immediately responded by stating that Mr Cummings would still not be sacked and the government consider “the issue as closed“, stating:
“The police have made clear they are taking no action against Mr Cummings over his self-isolation and that going to Durham did not breach the regulations. The PM has said he believes Cummings behaved reasonably and legally and he regards issue as closed.”
However, whilst their statement addresses Mr Cummings’ trip from London to Durham, Downing Street refused to address Durham Police’s findings that Mr Cummings’ trip to Barnard Castle breached the rules.
