Since posting last week I’ve emailed Durham Constabulary asking for further clarification of their 28th May statement. I asked that the force identify which of the “reasonable excuses” as set out in the legislation, applied in relation to Mr. Cummings’ 260-mile journey from London to County Durham.
But I’ve also been doing some reading up on this whole “reasonable excuse” thing. Not being a lawyer or legal scholar by trade I did not appreciate that the idea of a “reasonable excuse” features in the text of laws dealing with a diverse range of possible offences.
“a myriad of statutes … have been passed by Parliament incorporating the words ‘… without reasonable excuse’, as part of the offence itself”Newman, C and Middleton, B (2010) ‘Any Excuse For Certainty: English Perspectives on the Defence of “Reasonable Excuse”‘ The Journal of Criminal Law 74: 472-486
Then today I noticed that the latest College of Policing guidance on the updated Coronavirus Regulations states that the list of reasonable excuses in the legislation “is not exhaustive and officer discretion is key”.
Unfortunately I no longer have to hand the guidance issued in respect of the original and earlier revised versions of the legislation. So I can’t know at the moment (though I intend to look into it) whether the guidance to officers all along has been that it is up to them to decide whether a person’s excuse for being outside of the place they live is “reasonable”. If this is the position this would seem to give individual police officers the power to decide what is and is not against the law based on their own assessment of whether a person’s excuse is “reasonable”.
According to Newman and Middleton, the notion of a “reasonable excuse” was inserted into certain pieces of legislation in order to provide sufficient legal protection to those accused of offences under rather “broad-ranging” legislative provisions. Perhaps providing such protection was the intention of the authors of the Coronavirus Regulations. (Without access to their deliberations we can only speculate.) But, Newman and Middleton also note that
“There are relatively few offences in English law that afford the defendant the luxury of absolving his hitherto criminal conduct with an excuse that is deemed to be arbitrarily reasonable.”Newman, C and Middleton, B (2010) ‘Any Excuse For Certainty: English Perspectives on the Defence of “Reasonable Excuse”‘ The Journal of Criminal Law 74: 472-486
What is particularly interesting to note in relation to the current context is the way in which the “reasonable excuse” provision in the coronavirus legislation apparently blurs the boundary between police discretion in the sense of (1) interpretation of the law and (2) choosing if and how to act when the law has been broken.
This seems to have had the effect of allowing Durham Constabulary to say that Dominic Cummings did not break the law because its investigating officers have decided that he had a “reasonable excuse” for being away from his home. This is as opposed to saying that Cummings did break the law but that had their officers been aware of this at the time they would have used their discretion not to take enforcement action on the basis that he was able to provide a reasonable excuse for his behaviour.
This may seem a very minor distinction, but when you are the Prime Minister’s chief advisor the distinction between being labelled as a lawbreaker or not is (or at least should be) an important one.
This case also highlights one of the most thorny issues associated with the easy-to-use but harder-to-define concept of police discretion. That what it amounts to in cases such as this is, in effect, the police, rather than politicians, making the law. As I have written elsewhere (with my colleague Mike Rowe), this allows politicians to avoid becoming embroiled in politically-risky controversies around the details of how a law end up being used. As such, they can disown the consequences of their own legislation when it is convenient to do so.