Coronavirus has struck in different ways. As well as the devastation it has reaped in taking people's lives it has exposed an emasculated criminal justice system and political governance clamouring to justify law and guidance applying differently to those close to power from those outside.
There are two pieces of Emergency Legislation.
The Health Protection (Coronavirus Restrictions) (England) Regulations 2020/350 are the Regulations which prohibit movement. They are secondary legislation under the Public Health (Control of Disease) Act 1984 and were introduced, without going through Parliament, under its emergency procedure (section 45R).
They came into force on 26 March and must be reviewed within every 21 days (Regulation 3(2)). Amendments were made on the 22 April 2020 and on 13 May 2020. There are similar laws for Scotland, Wales and Northern Ireland.
The Public Health Regulations introduced the powers which prohibit leaving -or as amended on 22 April 2020 “being outside”- where a person is living without reasonable excuse. Considering the law as it was on 26 March, Regulation 6 contains a non-exhaustive list of reasonable excuses that can be advanced for breaching the prohibition. Whilst not providing a finite list, they included the need to obtain basic necessities (Reg 6 (2)(a)), exercise either alone or with other members of the person’s household (Reg 6(2)(b), to provide care or assistance,including relevant personal care to a vulnerable person, or to provide emergency assistance (Reg 6(2)(d), travel for the purposes of work where it is not reasonably possible for that person to work from the place where they are living (Reg 6 (2) (f)), and to avoid injury or illness or to escape a risk of harm (Reg 6(2)(m).
The Coronavirus Act 2020 is primary legislation. It came into force on 26 March 2020 and so was subjected to (speedy) Parliamentary scrutiny. It expires on 24 March 2022. It must be renewed every six months.
The Coronavirus Act introduces important powers relating to “potentially infectious” persons; those who are or may be infected or contaminated with coronavirus and there is a risk that the person might infect or contaminate others with coronavirus or the person has been in an infected area within the 14 days preceding that time (Schedule 21§ 2).
If the police (or immigration officer or public health officer) have reasonable grounds to believe that a person is potentially infectious they may then direct/remove that person to a place for screening and assessment; but only if it is reasonable and proportionate to do so (Schedule 21 §6-13). There are safeguards to be applied in that the officer must inform the person the reason for the direction and that it is an offence where the person without reasonable excuse fails to comply. There then are further enforcement powers at the place of screening and assessment and after the screening and assessment.
From the end of March to date there has been repeated and amended guidance -to explain the laws- from the Government, the National Police Chiefs Council and College of Policing and the Crown Prosecution Service. In addition, NHS guidance is approved, relied upon in justification of the laws and published on the government website. The "stay home save lives", only recently changed to "stay alert", was the slogan to highlight the detail.
The guidance is clear that anyone with COVID-19 symptoms should not leave their home for 7 days from when their symptoms started and for 14 days for others in the home. There is detail underpinning why "staying at home is very important" together with advice about online shopping, distancing in the home and keeping busy with cooking, reading, online learning and watching films.
The guidance includes a consideration of being potentially infectious and living with children and advises "keep following this advice to the best of your ability, however we are aware that not all these measures will be possible. What we have seen so far is that children with Covid-19 appear to be less severely affected. It is nevertheless important to do your best to follow this guidance."
This caveat demonstrates appreciation that not all will live in large properties with more than one bathroom or kitchen; where distancing in a household is difficult if not impossible. This can be understood from the reference to there being a low risk of children catching the virus (as opposed to the elderly/those with underlying health conditions where there is different guidance).
It cannot be interpreted as meaning that people with coronavirus symptoms may leave their home and drive to another part of the country. This would be entirely contrary to the main message.
Application of the Law to Members of the Public
The Coronavirus Emergency Laws struck early with their own virus of repeated wrongful prosecutions and unlawful convictions. The first publicised conviction was in Newcastle where Marie Dinou was arrested after she was discovered on her own on a platform at Newcastle railway station. She was charged, detained in cells for two nights, prosecuted, convicted and sentenced to a substantial fine. I looked at the case with journalist Fariha Karim for The Times. She had been wrongly prosecuted for “failing to provide identity or reasons for travel to police and failing to comply with requirements under the Coronavirus Act" under Schedule 21 of the Coronavirus Act 2020. There is no such offence. She also was not considered "potentially infectious".She appears to have been falsely imprisoned; there is no power of detention under Coronavirus laws. After my quick review, and the publication by the Times, the British Transport police did “fully accept that this shouldn’t have happened” and apologised. BTP Deputy Chief Constable Adrian Hanstock also said: “It is highly unusual that a case can pass through a number of controls in the criminal justice process and fail in this way”. But similar cases followed and on 2nd May 2020 the Crown Prosecution Service announced that it was reviewing all charges and prosecutions under the Coronavirus laws. Its results were published on 15th May and included the explanation "the CPS has committed to reviewing all prosecutions brought under the Coronavirus Act and Health Protection Regulations to make sure the new laws are being applied consistently and appropriately". 28% were found to have been incorrectly charged with 18 cases having been prosecuted all the way to conviction and sentence. https://www.cps.gov.uk/cps/news/cps-announces-review-findings-first-200-cases-under-coronavirus-laws
Whilst the British Transport Police Deputy Chief Constable expressed surprise that errors (or abuse) by police weren’t caught in the lawyer and District Judge safety net, it can be no surprise to governments – current and past- which have overseen swingeing cuts to legal aid, the court service and the Crown Prosecution Service. Battering the rule of law opens the cracks through which the vulnerable fall.
Martin Hewitt, Chair of the National Police Chiefs Council has written that there have been "well publicised instances" of "overzealous" policing during the early part of the lockdown.
More than 14,000 Fixed Penalty Notices have been issued by police to members of the public.
Such has been the enthusiasm with how the Emergency Laws have been applied to the public. Against this background, it should be of concern that Mr. Cummings's travel might not even have attracted any questioning from the police in order to consider whether he had broken the law.
Did Dominic Cummings break the law and/or the guidance?
It is important to separate the law from the guidance. The law is legally binding. Guidance can be ignored but the government expects it to be followed. Those in government should be held to set an example. Otherwise, cooperation is likely to collapse.
Dominic Cummings is clear that he acted both legally and responsibly.
Dealing firstly with the legality, it is apparent that when he and his wife and child left where they were living in London to drive 260 miles to Durham they were not within any of the non-exhaustive list of "reasonable excuses" under the Regulations. This is not to say that he did not have some other "reasonable excuse" but key questions remain unaddressed.
As the Regulations were introduced under the powers of the Secretary of State for Health and Social Care, it should be useful to consider Mr. Hancock's opinion of the situation.
He tweeted "It was entirely right for Dom Cummings to find childcare for his toddler, when both he and his wife were getting ill."
Aside from the obvious query as how this is consistent with Mr. Hancock's "direction" to stay at home at the time Mr. Cummings was doing the opposite, the legal position is that the Regulations were introduced for “preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination” (section 45C(1) of the 1984 Act).
How does the movement of potentially infectious persons around the country comply with purpose of the Regulations? Were there any stops at service stations en route? What property did Mr. Cummings move to? Was it rented? Would it be rented again? Did cleaners enter? Did he and/or his family members leave this property during the self-isolation period (in addition to the property where he was living)?
Also Deputy Chief Medical Officer, Jenny Harries said that being in a car for hours means that there is a "higher risk" of infection. If Mr. Cummings's wife was displaying signs of Covid-19, sitting next to her in a car for hours would have increased the risk of spreading COVID-19 in his household (as opposed to staying at home and following NHS guidance on distancing in the home).
And as to the potential need for someone to care for their child, it is important to consider whether there were family or friends near his home in London who were able to assist if required. They may not have been first choice but the pandemic and emergency laws passed in response to it introduced restrictions on all of us doing what we would prefer.
What is the "reasonable excuse" which created the "need" for Mr. Cummings to break the prohibition on leaving where he was living?
Explanation has been provided by Grant Shapps. In a press conference on 23 May he stated that it is up to individuals to make their own decisions and that "in times of crisis" we all "seek family ......around us". But this explanation is contrary to the law and to all guidance.
On 24 May the Prime Minister upheld Mr. Cummings's actions as following "the instincts of every father and every parent" and concluded that he acted "responsibly, legally and with integrity." "Instinct" is irrelevant to whether there is a "reasonable excuse". Primarily, it is an objective test; to be decided by the court. It is wrong in law for the Prime Minister to suggest that acting on instinct equates to lawfulness; in the same way that any excuse (that is not "reasonable") does not suffice. Obviously, reaching for "instinct" also was contrary to all guidance at the time which was directing people to suppress their instincts to travel and to go to family.
And what does this messaging now mean for all convictions and FPNs issued under these laws to date? Is it suggested that instinctive conduct should have been been considered before enforcement of the Regulations?
There remain questions to be answered as to how Mr. Cummings says that he acted legally.
Indeed, unlike all those people who have been prosecuted to date, Mr. Cummings' household actually did have COVID-19.
As to the responsibility of his actions, it is completely clear that Mr. Cummings breached government guidance which is presumed to be responsible.
Whilst the strategy of attempting to argue that Mr. Cummings' conduct was within government guidelines is insulting and distressing to those who have made terrible sacrifices by staying indoors away from family, it also clears the "we're all in this together" smokescreen to reveal a political plane where different rules apply.
Updated 25 May to include PM's press conference on 24 May.