The Equal Justice roadblock on the road to Barnard Castle

“It’s time to move on" was Boris Johnson’s pronouncement on Durham police’s finding that, if Mr. Cummings had been stopped he would have been considered by them to have breached the Health Protection (Cornavirus, Restrictions) (England) Regulations 2020.

This government approach, combined with Mr. Cummings’ negation of accountability, have  placed us all on a far more dangerous road that the one to Barnard castle.

Durham Police Finding

https://www.durham.police.uk/news-and-events/Pages/News%20Articles/Durham-Constabulary-press-statement--.aspx

The police looked back to what would – or they hoped would -have happened if Mr. Cummings had been stopped on his journey to and 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, providing advice on the dangers of travelling during the pandemic crisis. Had this advice been accepted by Mr. Cummings, no enforcement action would have been taken.”

Confusion or deliberate spin is sourced in this part of the statement:

“….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.”

This does not undermine the police’s conclusion that they would have considered Mr. Cummings to have broken the law if he had been stopped and given the account he gave at his press conference. Rather the wording reflects that the police cannot determine beyond reasonable doubt that Mr. Cummings (and/or his wife) committed  an offence. This is the remit of a court.

Importantly, the police cannot consider enforcement measures unless they are empowered by the Regulations; in other words if they have a reasonable belief that an offence has been committed best practice is to “engage, explain, encourage” with enforcement only being used as a last resort. Obviously, Mr. Cummings would have been entitled to say – “I’m not going home. I’ve done nothing wrong. I won’t pay a fixed penalty notice. Start a prosecution and let a court decide”. Or he could have followed the advice and avoided escalation.

The need for police to avoid issuing fixed penalty notices or commencing prosecutions is particularly important if the offending is considered to be at the lower end of the scale. Durham police in fact emphasised the following:

"By way of further context, Durham Constabulary has followed Government guidance on management of alleged breaches of the regulations with the emphasis on the NPCC and College of Policing 4Es: Engage, Explain and Encourage before Enforcement."

Fixed Penalty Notices

At this time, however, up and down the country people were being issued with fixed penalty notices and even prosecuted; irrespective of social distancing.

The statistics released by the National Police Chiefs’ Council on 29 May 2020 show that police in England and Wales have issued nearly 17,000 fines for alleged breaches of the Regulations. On 3 June 2020, statistics from the Metropolitan police show that 26% of fixed penalty notices issued between March 27 and May 14 were issued to black people who make up 12% of London.

The issuing of fixed penalty notices is empowered under Regulation 10 of the Regulations. This means that the officer “may” issue a fixed penalty notice to anyone that s/he reasonably believes has committed an offence

The police also stated that Durham Constabulary does not consider that by locating himself at his father’s premises, Mr Cummings committed an offence contrary to regulation 6 of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 adding -pointedly -that “we are concerned here with breaches of the Regulations, not the general Government guidance to “stay at home”.

They give no reasons. They do not take into account the childcare arrangements available to Mr. Cummings near his home in London and the fact he did not even make enquiries of local friends, family or services. They do not take into account the minor level of his wife’s illness; illustrated by his account in his press conference that after her initial sickness, she was recovered enough for him to return to work. She was able to look after their child at the point they left home and they both were fit enough for a journey of around 5 hours. They do not refer to the purpose of the Regulations being to prevent the spread of Covid-19 and, particularly when read with guidance, giving no individual discretion for those potentially with the virus to go outside where they are living.

 It might be that Durham police decided to concentrate on actions on their patch and leave any complaint concerning Mr. Cummings’ leaving home in London to the Metropolitan police force if required. I don’t suggest that it is. This is not about prosecuting one individual – the Regulations were draconian. It is about fairness; congruence between law and application.

The Law

On 1 June 2020 the Regulations were radically re-written so that Regulation 6(1) -which previously had prohibited a person leaving the place where they were living (from 26 March 2020) or being outside the place where they were living (amendment 22 April 2020) without reasonable excuse-now allows people to go where they wish in the day as long as they return to where they are living overnight.

The new Regulation 6 (1) prohibits a person staying overnight at any place other than the place where they are living. There is a non-exhaustive list of reasonable excuses at Regulation 6(2) which include if it is reasonably necessary “for work purposes”.  This has cued shock and derision in commentary that sexual relationships overnight (does that mean up to midnight?)  with someone from outside where a person is living can only be continued under a paid contract.

The new Regulation 7 prohibits without any reasonable excuse exemption both public and private gatherings. A gathering defines numbers as being more than 6 people (outdoors) and  “two or more” (indoors) unless listed exceptions apply and being “when two or more people are present together in the same place in order to engage in any form of social interaction with each other, or to undertake any other activity with each other.” (Reg 7(3)).

The lack of Parliamentary scrutiny or debate is demonstrable in the confused drafting. So illogical is this new law - which headlines empty threats to snoop in our homes -that it feels like the drafters did not take it seriously; ducking with eyes wide shut as they published it on a website.

And so much for “a person’s home is their safest refuge” (Semayne’s case (1604) 5 Coke Reports 91a 77ER 194).

I’ll return to the new Regulations in updating our guide on Coronavirus laws with Pippa Woodrow.

Old Law

I set out the law, as it was at the time of Mr. Cummings’ outings in my previous blog.

As a recap, the Health Protection (Coronavirus Restrictions) (England) Regulations 2020/350 are the Regulations which prohibit movement and activity. 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 every 21 days (Regulation 3(2)). Amendments were made on the 22 April 2020 and on 13 May 2020 and on 1 June. The key Regulations 6 and 7 were radically rewritten on 1 June.

There are separate laws for Scotland, Wales and Northern Ireland.

It was the Public Health Regulations that introduced the powers which prohibited a person leaving where they were living without reasonable excuse. Considering the law as it was on 26 March 2020, Regulation 6 (2)  contained a non-exhaustive list of reasonable excuses that could be advanced for breaching the prohibition.

“Rules”

It is important that we do not follow the government and others into the language of “rules”; as if we actually all are just playing one nationwide rugby game with a shadowy referee.

There is law and there is guidance. The use of the word “rules” doesn’t just blur the seriousness of a senior government advisor breaking the law but weakens law itself.

Breaking the Law and Guidance

Various attempts were made by various politicians backing Mr. Cummings to rely on three of the listed “reasonable excuses”, namely Regulation 6(2)(d) “to provide care or assistance, including relevant personal care to a vulnerable person or to provide emergency care” 6 (2)(m) “to avoid injury or illness or to escape a risk of harm” and 6(2)(i) “to access critical public services, including childcare or educational facilities”.

However,  when Mr. Cummings read from his statement on 26 May- which appears to have have been drafted by lawyers- he did not seek to rely on any of those reasonable excuses. This was wise as they can only reasonably be interpreted to apply to travel to care for an elderly person or someone with underlying health issues, fleeing to avoid domestic violence or a mentally stressful situation or accessing public services.

Rather, Mr. Cummings settled on government guidance which addresses the situation of where someone is potentially infectious and living with children. It states that you may have coronavirus if you “have either of the following symptoms, however mild: a high temperature; a new and continuous cough” and that anyone who has these symptoms must stay at home until the symptoms have ended and in all cases at least seven days. Everyone else in the household must stay at home for at least 14 days after the first person’s symptoms appear. The guidance contains advice on what you can do when in self-isolation. It included online shopping, distancing in the home, cleaning of surfaces and keeping busy with cooking, reading, online learning and watching films.

It doesn’t deviate from its guidance that the household stays at home but 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."

It is this section that Mr. Cummings read out in response to questions at his press conference.

This part of the guidance demonstrates appreciation that not all will live in large properties with more than one bathroom or kitchen; where distancing in a household may be difficult if not impossible. It is taking into account that not all households will have the internet, Netflix or capability to online shop; plus exacting cleaning might not be possible. This can be understood from the reference to there being a low risk of children catching the virus – if all measures cannot be followed (as opposed to the elderly/those with underlying health conditions where there is different guidance).

Whilst Mr. Cummings flipflopped between whether his wife might have had Covid -19 (hence the emergency) or wasn’t particularly ill (hence he could return to work after seeing her) he relied on the guidance which applies to those with COVID-19 symptoms. He also said that he thought he might have the virus himself.

The guidance could not be interpreted as meaning that people with Covid-19 may leave their home and drive to another part of the country. It doesn’t create an exception to the "stay at home" instruction if you have children. This remains the guidance. It was one of the areas of government direction that was inherently logical and in keeping with NHS guidance and scientific advice. It is entirely disingenuous to suggest that it could be interpreted differently.

There can be no doubt that Mr. Cummings broke the guidance. The police considered that he broke the law on the Barnard castle trip. I agree. My opinion is that there would have been a reasonable belief that he broke the law when he left London and drove to Durham. Mashing guidance into law and producing as “rules” is nothing but a smokescreen.

Just Law

We recognise that the concept of justice relates not only to laws but to the application of laws. Equal justice means that those in power must conform with laws. In other words, fairness secures legitimacy.

Dominic Cummings’s behaviour continues to concern the public. There are variations of twitter hashtags “not moving on”. This is not because of news agency manipulation of facts or political games but because people want to stand on a floor of fairness. Jeremy Waldron describes the rule of law as “one star in a constellation of ideals that dominate our political morality.” (The Rule of Law and the Importance of Procedure”).

Mr. Cummings’s actions go beyond him as an individual. Laws are necessary for the rule of law but they are meaningless if benefits and burdens are shared unequally. Legal systems should strive for equal justice. Watching government ministers fight for the opposite in the case of Mr. Cummings is not only abhorrent to the rule of law but is behaviour that, ironically given Mr. Cummings’s excuse, is myopic. It undermines public trust and confidence in policing. It undermines prosecutions and convictions in courts.

If the rule of law is treated with such disdain or simply is not understood by government, I can take a different approach and invite the Prime Minister to read Winston Churchill’s “Iron Curtain” speech at Fulton Missouri in 1946. He spoke of the importance of human rights and concluded with the basic message “let us practise what we preach”.