A week may be a long time in politics, but it is surely premature to close a criminal investigation of the Dominic Cummings affair.
By way of reminder, should one be needed, last Monday, Durham’s Police, Crime and Victim’s Commissioner formally asked Durham police to investigate Mr Cummings for suspected breach of the Coronavirus Act1. On Tuesday it was reported that the police had indeed begun their investigation2. On Wednesday, the Prime Minister told the Commons’ Liaison Committee – and the world – that it was time to ‘move on’3. On Thursday Durham Police issued a statement concluding, from their 3 day investigation, that he should not be prosecuted4. Then on Sunday, the national press reported that ‘Britain’s top public health leaders and scientists have warned Boris Johnson that trust in the government has been shattered by the Dominic Cummings affair and now poses real danger to life when lockdown measures are lifted this week’5.
Durham police investigation
Durham police appear to have examined just two aspects of Mr Cummings’ behaviour, purely through the lens of regulations made under the Coronavirus Act and limited themselves to events in Durham. They said this:
First, ‘On 27 March 2020, Dominic Cummings drove to Durham to self-isolate in a property owned by his father. Durham Constabulary does not consider that by locating himself at his father’s premises, Mr Cummings committed an offence’.
Second, ‘On 12 April 2020, Mr Cummings drove approximately 26 miles from his father’s property to Barnard Castle with his wife and son…. Durham Constabulary have examined the circumstances surrounding the journey to Barnard Castle …..and have concluded that there might have been a minor breach of the Regulations that would have warranted police intervention. Durham Constabulary view this as minor because there was no apparent breach of social distancing [but] there is no intention to take retrospective action …. since this would amount to treating Mr Cummings differently from other members of the public’ .
This investigation, statement and conclusion are as cursory as they are unsatisfactory.
They took the view that the breach was ‘minor’ because no social distancing rules were breached, even though compliance with social distancing rules is not a stated element of the offence under consideration6.
They did not investigate Mr Cummings’ decision to leave London or to make the 260 plus mile trip to Durham or other aspects of his conduct, or assessed, in doing so, whether he had any other supportive family or friends, closer to home. Indeed, while working at Downing Street and before the trip to London, he is reported to have gone home to attend to his wife who was showing covid symptoms, and then travelled back to work.
He is reported to have retrospectively amended in April 2020 an article first written in March 2019 so as to suggest, in his exculpatory comments in May 2020, that he has foreseen the possible impacts of the virus, implying that this informed and lent credibility to his participation in the SAGE scientific committee and contribution to the government’s covid policy7.
And they have airbrushed the biggest point of all – that Mr Cummings is not like any other ‘member of the public’, given his role at the heart of government, on which more, below.
Journeys through the law
The Cummings car trips – car-crashes in PR terms – led many of us on google journeys of our own.
The first was to check the maximum sentence for breaches of the Coronavirus Act. It is only a fine.
So, from there, to look for alternatives, given the very serious potential consequence of his actions. One offence stands out – ‘misconduct in a public office’. The Crown Prosecution Service’s (CPS) website summarises it:
Misconduct in public office is an offence at common law8 triable only on indictment. It carries a maximum sentence of life imprisonment. It is an offence confined to those who are public office holders and is committed when the office holder acts (or fails to act) in a way that constitutes a breach of the duties of that office9.
The CPS remind us that it should not normally be deployed where there is a statutory offence, which covers the same ground (such as the regulations made under the Coronavirus Act10).
But there may be exceptions where there is ‘good reason’11 – one being where ‘the maximum sentence for the statutory offence would be entirely insufficient for the seriousness of the misconduct’.
Mr Cummings’ case is truly exceptional and it is difficult to imagine a greater asymmetry between the consequences of a public official’s conduct on the one hand and, on the other hand, the applicable maximum statutory penalty. Here Mr Cummings’ unique place within the Government’s machine bears repeating:
- Mr Johnson is said to be so much in Mr Cummings’ thrall that there may in fact be no circumstances in which he would sack Mr Cummings12
- He is involved in the Committee, SAGE, which provides the scientific advice to the government on which its policies are based, in circumstances where the advice is not published (and the government is criticised for not doing so) and where the government’s mantra is that its policies follow the scientific advice13
- He has been central to decisions about devising, disseminating and enforcing that policy
- He brings to his job an apparently unique understanding of what the public think and how the public can be influenced.
Returning then to the law, 4 elements need to be proved to be convicted of the misconduct offence. It applies where:
(a) a public officer acting as such;
(b) wilfully neglects to perform his duty and/or wilfully misconducts himself;
(c) to such a degree as to amount to an abuse of the public’s trust in the office holder;
(d) without reasonable excuse or justification14.
‘A public officer acting as such’?
Beginning with the first, was Mr Cummings ‘a public officer acting as such’?
Mr Cummings is neither elected nor a civil servant in the traditional sense. He is, however, employed by Mr Johnson and is at the heart of the Downing Street machine, as well as the covid strategy (above). The CPS guidance, reviewing the legal authorities, says: It does not seem that the person concerned must be the holder of an ‘office’ in a narrow or technical sense. The authorities suggest that it is the nature of the duties and the level of public trust involved that are relevant, rather than the manner or nature of appointment.
But was he ‘acting as such’ at the time he was driving his car? The guidance on that question can be found in the attempted prosecution of Mr Johnson for his part in promoting the slogans on the ‘Vote Leave’ bus suggesting that the UK would save £350m per week by leaving the EU, monies which could be channelled instead to the NHS.
Quashing summonses against Mr Johnson for misconduct in a public office, the Administrative Court said that there was insufficient connection between the alleged misconduct (the slogan during an election campaign) and the defendant’s public office (he was then MP and London Mayor) – stressing ‘at the time of the alleged misconduct the individual must be acting as, not simply whilst, a public official’15 .
It may be argued on Mr Cummings’ behalf that he was not acting as a public official when away from his home in London. This, however, would be to discount his importance as a role model. In his own words ‘people like me who helped to make the rules should be accountable for their actions’16.
Wilful misconduct, abusing the public’s trust, without reasonable excuse
The guidance from the CPS website for the three remaining elements of the offence17, as distilled from the legal authorities, states that:
The wilful neglect or misconduct can be the result of a positive act or a failure to act. ….for example, a police officer was held to have been correctly convicted when he made no move to intervene during a disturbance in which a man was kicked to death.
On whether the acts were ‘wilful’ it explains:
the definition of ‘wilful’ [includes] ‘deliberately doing something which is wrong knowing it to be wrong or with reckless indifference as to whether it is wrong or not’.
On ‘abuse of the public’s trust’:
Public officers carry out their duties for the benefit of the public as a whole. If they neglect or misconduct themselves in the course of those duties this may lead to a breach or abuse of the public’s trust.
On the ‘seriousness’ of the misconduct, judges must ask a jury to consider two questions:
The first is to refer the jury to the need for them to reach a judgment that the misconduct is worthy of condemnation and punishment. The second is to refer them to the requirement that the misconduct must be judged by them as having the effect of harming the public interest.”
On the consequences:
the likely consequences of any wilful neglect or misconduct are relevant when deciding whether the conduct falls below the standard expected.
What is the defence?
The CPS guidance also addresses the suspect’s point of view.
On motive it says this:
the officer’s motive is also relevant: “… the question has always been, not whether the act done might upon full and mature investigation be found strictly right, but from what motive it had proceeded; whether from a dishonest, oppressive, or corrupt motive, under which description, fear and favour may generally be included, or from mistake or error …”
On ‘reasonable excuse or justification’:
The defendant may advance evidence of a reasonable excuse or justification. It is for the jury to determine whether the evidence reveals the necessary culpability.
We already have a clear idea, from his comments in Downing Street’s Rose Garden, last week about how Mr Cummings might defend himself. While typically uncompromising in most respects, he also made some significant concessions18:
I can understand that some people will argue that I should have stayed at my home in London throughout.
I could also understand some people think I should not have driven at all anywhere.
I was involved in decisions affecting millions of people
He acknowledged that his actions should be measured against the impact they might have on ‘effective government’, a double edged sword in this context19.
As for Mr Johnson, he has said little more than endorse Mr Cummings and repeat that it’s time to ‘move on’, an interesting choice of words in the circumstances.
So where next for Mr Cummings and Mr Johnson?
There has of course been a clamour, this last week, for Mr Cummings to resign and / for Mr Johnson to sack him20.
The crescendo has only increased and focussed with this weekend’s letter from Britain’s top public health leaders and scientists to Mr Johnson21. Among other things they say this:
There is ample evidence that effective epidemic control requires the public to trust and respect both the messages and the messengers who are advocating action. This trust has been badly damaged by the actions of Dominic Cummings, including his failure to stand down or resign in the public interest, and Boris Johnson’s subsequent unwillingness to remove him22.
So might Mr Cummings’ refusal to resign and / or Mr Johnson’s inability to remove him amount to misconduct in a public office?
There are, of course, the precedents to what is expected of such officials – set by Professor Neil Ferguson and Dr Catherine Calderwood. Both resigned. Professor Ferguson, the eminent epidemiologist who sat on SAGE and helped shape the government’s response to coronavirus and advocated the lockdown did so when he reportedly allowed someone not in his household to visit his home during lockdown. So too did Dr Calderwood, the Scottish chief medical officer who had visited her second home during lockdown.
They did not leave their posts simply because they may have broken lockdown rules. Members of the public do not normally leave their jobs for breaches of the spirit or letter of a law, especially where no criminal conviction has followed and the offence is relatively minor, in terms of its maximum sentence. The posts they held (and from which they stood down) were central to the making of government policy AND the effectiveness of that policy was damaged by them remaining in post.
In response to Professor Ferguson’s resignation Health Secretary Matt Hancock said this: ‘“Prof Ferguson is a very, very eminent and impressive scientist and the science he’s done has been an important part of what we’ve listened to, and I think he took the right decision to resign”23.
James Brokenshire, the Home Office minster, reportedly ‘said Ferguson’s resignation had been “an appropriate course” because other people had tried so hard to stick to the lockdown, even though it had been hard not to see loved ones’ .
Scotland’s First Minister Nicola Sturgeon was roundly criticised for not sacking Dr Calderwood straight away25 – in particular for her judgement that the continued value of Dr Calderwood remaining in post outweighed the potential damage it did to the maintenance of public confidence in the administration’s covid policy. Indeed, Nicola Sturgeon eventually accepted that it was right for Dr Calderwood to leave26.
In her own words, Dr Calderwood said she left because “the justifiable focus on my behaviour risks becoming a distraction from the hugely important job that government and the medical profession has to do in getting the country through this coronavirus pandemic.”27. Similarly, Professor Ferguson said this: “I deeply regret any undermining of the clear messages around the continued need for social distancing”28.
Mr Cummings’ statement ended with these words:
I wanted to explain what I thought, what I did and why, over this period, because I think that people like me who helped to make the rules should be accountable for their actions.
Ordinary members of the public are not normally offered the opportunity to account for their actions in the Rose Garden of Downing Street.
We will all have our own views about whether Mr Cummings and / or Mr Johnson committed an offence, including Mr Cummings’ failure to resign and Mr Johnson’s failure to dismiss him. Some will attach more, or less, weight to the facts, as they appear to be known, described above or from other sources. Many have given their verdicts in the court of public opinion.
But what has notably been missing is a formal, fair, independent process which obtains all relevant evidence and draws informed conclusions based on that.
There have, quite rightly, been calls for a public inquiry. This should take place. It should be thorough and exhaustive. But these features will also mean that it will be retrospective and protracted. And there have been bad experiences where Inquiries have looked at the contentious actions of those at the very top of government – Saville into the Bloody Sunday killings and Chilcott into the Iraq war.
And public confidence has been draining away. This is having an impact on the public’s confidence in the government’s measures now. And this, in turn, puts at risk many lives in the future – the next months, maybe years, it takes the Government and the public to get the virus under some sort of control.
So, as a first step to restoring confidence, ensuring compliance and saving lives what is needed now is a prompt, decisive investigation of the root cause of the immediate problem: why Mr Cummings is still in place. The investigation must look at all aspects of his past behaviour (not just that based in Durham); all potential offences (including misconduct in a public office); and it must include some of Mr Johnson’s decisions (including his decision not to sack Mr Cummings).
Durham police have set out their stall. It is flawed. It is now time for the Metropolitan police specialist units and the Commissioner to step up to the plate.
But it does not stop there. The investigators and putative prosecutors need protection themselves. It is of concern that both the Home Secretary and Attorney General have publicly backed Mr Cummings, but noticeable that the Lord Chancellor / Justice Secretary has not (yet)29. The investigators and the CPS (the (current) Director of Public Prosecutions in particular), need their support. We have seen, with this Home Secretary in recent times, how things can go awry between senior ministers and other public officials30.
If this case ever reaches the courts, judges must be bold and independent too. The Supreme Court’s judgement in the Miller / Parliament prorogation case (31again involving Mr Johnson, this time ruling against him – unanimously and spectacularly) has already set the Government on a wing-clipping exercise32. Thus, if the misconduct project takes flight, Mr Johnson’s administration may be on course to undermine not only the physical health of the population but the legal health of the Constitution.
A lot has been said about the need for proportionality in police investigations of Coronavirus offences. That is how it should be. But this has been expressed so far against the benchmark of minor offences, with relatively minor consequences (for the public and in terms of sentence) if breached and committed by ordinary members of the public.
Mr Cummings’ and Mr Johnson’s position is of a quite different order. For them, proportionality requires robust scrutiny. It is, after all, the first responsibility of government in a democratic society to protect and safeguard the lives of its citizens – a principle articulated frequently by courts, even in the most difficult cases.
5 https://www.theguardian.com/politics/2020/may/30/dominic-cummings-has-broken-covid-19-policy-trust-say-top-scientists; https://www.theguardian.com/commentisfree/2020/may/30/dominic-cummings-actions-damage-public-health
6 Presumably the offence of leaving home (or being outside of home), without a reasonable excuse, regulation 6 Health Protection (Coronavirus, Restrictions) (England) Regulations 2020
7 https://www.bbc.co.uk/news/business-52808059; https://www.theguardian.com/politics/2020/may/26/dominic-cummings-faces-questions-over-claim-he-warned-last-year-of-virus-threat. ‘For years, I have warned of the dangers of pandemics. Last year I wrote about the possible threat of coronaviruses and the urgent need for planning. The truth is, that I had argued for lockdown. I did not oppose it’ – https://www.independent.co.uk/news/uk/politics/dominic-cummings-statement-speech-transcript-durham-full-text-read-lockdown-a9531856.html
8 Ie created by judges, not Parliament
10 The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020
11R v Rimmington; R v Goldstein   1 AC 459
12https://www.bbc.co.uk/news/av/uk-politics-51676581/how-powerful-is-dominic-cummings (but ‘he is only in the job as long as Boris Johnson wants him to be’); https://www.theweek.co.uk/107082/how-powerful-is-dominic-cummings https://www.newstatesman.com/politics/uk/2020/05/if-dominic-cummings-not-sacked-boris-johnson-s-government-will-lose-all
14Following Attorney General’s Reference No 3 of 2003  EWCA Crim 868, as summarised by the CPS in its guidance, above
16See below, his comments in the Rose Garden at Downing Street.
19‘I believe that in all circumstances I behaved reasonably and legally, balancing the safety of my family and the extreme situation in No.10 and the public interest in effective government to which I could contribute’
32In the words of a Financial Times headline, as recently as December last year – ‘Lawyers fear Tories are planning ‘revenge’ against Supreme Court’ – https://www.ft.com/content/60f97382-1b4e-11ea-97df-cc63de1d73f4