So the verdict is in. And it turns out my reading of the coronavirus legislation differs from Durham Constabulary’s. They have found a reason why Dominic Cummings did not break the “stay at home” rules when he drove 260 miles from London to Durham. I suggested yesterday that his explanation would stretch the “reasonable excuses” too far. But Durham must have spotted something I didn’t. And I’m really keen to find out what that is.
In the meantime, the key “take homes” from Durham’s statement are as follows (in my view):
““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.”
We have no clue as to how this conclusion was reached as they do not provide details of Cummings’ “reasonable excuse” for not staying at home.
““Durham Constabulary have examined the circumstances surrounding the journey to Barnard Castle (including ANPR, witness evidence and a review of Mr Cummings’ press conference on 25 May 2020) 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.”
The legislation itself does not (as far as I can see) make any distinction between minor and major breaches of the regulations. This distinction has been added by the police, though possibly based on guidance from elsewhere (e.g. College of Policing, National Police Chiefs’ Council). I’ll have to look into this.
2. Choice of action in response to possible “minor” offence
“there is no intention to take retrospective action in respect of the Barnard Castle incident”
Durham have the power under the legislation to issue a Fixed Penalty Notice for the apparent breach of the regulations. However, following (it seems) the “4Es” approach advocated by the National Police Chief’s Council and College of Policing they don’t deem this to be an appropriate response. The reasoning seems to be that the opportunity to encourage Mr. Cummings to behave in a different way has passed and that there is no value to applying a retrospective penalty for the offence. That fining Mr. Cummings might provide a clear message to the public about what is and is not acceptable under the regulations (which may be re-imposed if we hit a second peak) and even possibly provide a general deterrent effect for others does not seem to enter into the 4Es reasoning.
Durham’s statement raises a number of questions about the police’s approach to the lockdown regulations, and the application of police discretion in this regard both in (1) interpreting what is and is not an offence and (2) choosing how to respond when they do encounter offences. I hope to have time to explore these in more detail in a further blog soon.