Proposed changes to policing of protests appear intended to maintain a “state of denial”

Just a few further thoughts following on from yesterday’s post about the protesting around the Police, Crime, Sentencing and Courts Bill.  

Concerns about definition of “aggravated activism” are understandable but may not be well-founded

Concerns are continuing to be raised around potential developments in the policing of protests, the Guardian reports today. Two campaign organisations (the Good Law Project and Stop Funding Hate) have raised concerns that guidance produced by the National Police Chiefs’ Council (NPCC) and College of Policing proposes a highly restrictive definition of unlawful protest.

The guidance is referred to in a recent report from Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services (HMICFRS) on the police response to protest. HMICFRS recommended that the guidance document (which is described as containing “problems with some of its legal explanations” and having the potential to be misinterpreted by members of the public) be revised.

According to the Guardian’s report, the two campaign organisations have produced a joint letter arguing that the NPCC definition of “aggravated activism” might include people who organise boycotts of shops or businesses or engage in a range of other non-criminal activities. However, it is not immediately clear that these fears are well-founded. Whilst the over-arching definition of aggravated activism quoted in the Guardian does seem worryingly broad, when we read the HMICFRS report it clearly states (see page 21) that the NPCC recognises two levels of “aggravated activism” both of which involve “unlawful behaviour or criminality”. In other words “aggravated activism” is understood by the NPCC as activism which involves unlawful or criminal behaviour.

But there are issues with the HMICFRS report on protest policing

The above comment is not intended to suggest that we should not be concerned about the content of the HMICFRS report. The report raises a number of issues that require closer investigation and consideration. Two things immediately spring to mind for me on reading the report.

(1) Where exactly does HMICFRS stand on the issue of striking the right balance when gathering “intelligence” on protest movements?

“The police need accurate, comprehensive intelligence on aggravated activists from a range of sources. This may sometimes involve covert sensitive intelligence-gathering methods, which include surveillance and the use of CHISs.” (Page 21)

Given that the Mitting Inquiry into undercover policing of protest groups is ongoing I was surprised not to see this mentioned at all in the report. Not to acknowledge that the police have shown a tendency to deploy highly disproportionate, intrusive and even abusive tactics in the attempt to monitor largely peaceful protest groups seems a significant oversight. If a high-level report of this kind fails to even mention the significant judge-led inquiry underway in this area then what hope is there that the police (and the organisations supposed to be holding them to account) will learn lessons for the future?

(2) Does looking at the issue of policing protests primarily through a framework of individual rights offer sufficient protection for protest as a form of political engagement and expression in a democratic society?

The repeated focus on striking the right balance between the “right of the individual” to protest and the right of “the community” not to be disrupted seems to me to miss an important point about protest. Others (e.g. Jackson, Gilmore and Monk) have commented in the past about this misleading (and perhaps rather tactical) attempt to propose an artificial opposition between individual/community, protestors/locals, as if individual protestors are not also members of the community. It strikes me that it is also rather unhelpful to think about protest in terms of my individual right to protest. Perhaps it might be more useful to think in terms of the right, perhaps even the need, of the community to be exposed to protest.  

New proposals on protest policing appear to privilege the right to remain in a state of denial

What I mean by this is that to talk about the need to ensure that the right of the individual to protest does not override the right of the community not to be disrupted or impacted seems to me to privilege the right not to be confronted with the ways in which our own choices, behaviours, privileges may come at the expense of others who may not even have a voice to protest. Because many, if not most, protestors are not seeking to draw attention to and assert merely their own rights or needs, but rather to draw attention to and register their opposition to injustices occurring to other people (and non-human beings) who are not in a position to do this.

The question then is this: should we elevate the right of the individual not to be informed or made aware when their way of life is predicated on slave labour, child exploitation, cruelty to non-human animals, environmental degradation or indeed comes at the expense of the survival of as yet unborn future generations, above the right of individuals coming together as protest movements to attempt to make them aware of these things?

20 years ago Stanley Cohen wrote about States of Denial. He argued that the most commonly used form of denial is ‘the maintenance of social worlds in which an undesireable situation … is unrecognized, ignored or made to seem normal’ (Page 51).

The way this HMICFRS report is worded it seems that maintaining a state of denial for the majority is at the centre of current police and government thinking about the role of the police in managing active modes of political expression.

Angry scenes in Bristol should not distract from protestors’ central message: the right to engage in effective protest is in danger

As a visual and media spectacle, events in Bristol on Sunday might seem like a gift for proponents of the controversial Police, Crime, Sentencing and Courts Bill 2021 which started its journey through parliament last week. Faced with images of a burning police van, smashed police station windows and fireworks exploding in the middle of crowds, and reports of injured police officers, some might feel that tough action is urgently needed to rein in the actions of protestors who are seemingly out of control. Yet all of the examples of destruction and endangerment of life highlighted in the media and roundly condemned by politicians from all sides are already illegal and could be dealt with adequately through existing laws. It is a shame that a small number of protestors, provoked or not, have detracted from the urgent and important purpose of the demonstration, which was to draw attention to the excessive provisions for curtailing protest contained in the Bill before parliament.

The right to protest by gathering in groups either standing still in an assembly or moving through our towns and cities in processions has been crucial to highlighting urgent social and political issues and catalysing progressive change throughout history. Sometimes protests can be inconvenient or annoying to those not involved in them. Recent decades have seen successive governments seeking to elevate people’s right not to be annoyed or inconvenienced above the rights of protestors to make themselves heard. The Police, Crime, Sentencing and Courts Bill 2021 can be read as the latest such attempt. Indeed, the Bill makes explicit provision for the police to impose conditions on protests where the “noise generated” may have a “significant, relevant impact” on “persons in the vicinity”. A “relevant impact” could include causing “people in the vicinity” to suffer “serious unease”. If the Bill passes in its current form senior police officers will be empowered to impose conditions and give directions to protestors to prevent such “impact”. Should such directions be violated by protestors who know or “ought to know” of them, the maximum sentence they can receive will increase to 3 months in prison for protest participants and 1 year in prison for organisers.

Should the Bill pass into law in this form, it will effectively remove the right to engage lawfully in impactful protest. Protest aims to cause “unease”: to discomfort those who benefit from, tolerate or turn a blind eye to injustice and to raise awareness amongst those who were previously unaware of an issue. Quiet, polite protests routed away from locations where “people in the vicinity” might experience the “unease” of being confronted with their own complicity in injustice are unlikely to catalyse change. Unless our parliamentarians come to their senses and substantially amend this Bill, unseen and unheard looks like being the future of lawful protest in the UK.

When is a rule not a rule?

So it’s been just over a month since the story about the PM’s special advisor Dominic Cummings apparently breaking the coronavirus lockdown rules came to light. Did he? Didn’t he? Does anyone care now?

Certainly it seems that Cummings’s possible transgressions are old news now that we are on the cusp of so-called “Super Saturday”, rattling our cages in anticipation of an afternoon in a newly “covid-secure” pub. But with the clear prospect of restrictions being restored for certain cities or regions in response to local spikes in infections (as in Leicester) the issue of what exactly the so-called “lockdown” rules are, and what the consequences should be of breaching them, remains an important one.

And the centrality of the idea of police discretion to the whole enterprise of “locking down” is still an interesting one. A little more digging has revealed that even MPs remain confused about the nature of the coronavirus restrictions and associated police powers. For example, on 4th May in the first parliamentary debate on the coronavirus restrictions Labour’s Justin Madders stated

“If the next phase is likely to contain a longer list of reasonable excuses to leave home, it is even more important that those rules are clear and consistent. The rules need to be harmonised with advice, guidelines and all forms of official communication.”

Justin Madders, MP

Mr Madders clearly made the same mistake as me (see my May 28th post) in thinking that the list of “reasonable excuses” included in the legislation represented the only excuses that would be accepted as reasonable. As I wrote a few days later, this was an error and the list was not in fact exhaustive. As such, Durham Constabulary were perfectly within their rights to state that the Cummings family’s trip from London to Durham did not breach the “stay at home” requirement in force at the time because the force considered that his excuse was “reasonable”.

“POLICE DISCRETION BEGINS WHER THE RULE OF LAW ENDS”

This is a great illustration of the highly problematic side of police discretion, which is that it seems to make what is and is not against the law a matter of subjective human judgment, or as Reiman has argued

“police discretion begins where the rule of law ends: police discretion is precisely the subjection of law to a human decision beyond the law”

(Reiman, 1996: 74)

Now, Reiman was writing about discretion in the sense of police choosing not to take legal action against someone who has broken the law. But, as I argued on 2nd June, inserting the idea of “reasonable excuse” into legislation effectively blurs the boundaries between police discretion in the sense of interpreting the law, and in the sense of choosing how to respond when the law has been broken.

In fact this distinction (between interpretation and choice) is inherently artificial and unstable because it is always possible for police officers to interpret the situations they encounter in certain ways so as to avoid being required to take certain actions or follow certain procedures (for example in relation to cases of suspected domestic abuse). This is something I’ve written about with my colleague Mike Rowe in an as yet unpublished paper you can view in draft form here.

Of course it is hard to imagine how law could really function without the application of human judgment. Indeed, discretion has been described as a kind of lubricant in the legal system: without the application of human judgment the whole system might collapse under the weight of the absurdities and injustices it would produce. But I think we should be wary of accepting this positive evaluation of discretion wholesale.

Indeed, as Mike and I argue in the paper mentioned above, the very concept of discretion is poorly defined and thus seems to us to be of rather limited analytical value. Furthermore, its very ambiguity makes it a rather convenient ingredient in a celebratory account of police power, a legitimising resource that deserves and requires more critical exploration.

When the coronavirus restrictions first came into force at the end of March, the Home Secretary Priti Patel stated that the police would use their “common-sense and discretion” in applying them. Cases like that of Dominic Cummings’ escape to Durham shine a light on what police discretion means in practice. Discretion replaces certainty about what is and is not allowed with the unpredictable and variable outcomes produced by human judgment, allowing police to in effect determine who is and who is not subject to criminal sanction. The scope for such discretion is greatly enlarged by ambiguous laws and loosely defined defences, like that of “reasonable excuse”.  

What is “reasonable”? What is “common-sense”? Who should decide? These are big and difficult questions, but they are ones we must confront when, as in the curious case of Dominic Cummings, it seems that a rule is not, in fact, a rule.    

Remember when a police force tasered one of its own race relations advisors? Reflections on the Black Lives Matter protests and police discretion

A brief refreshing moment on Monday morning, hearing an interview with a politician who appears to appreciate the distinction between making the laws and enforcing them. Elected Mayor of Bristol Marvin Rees was interviewed on the Today programme about the toppling of the statue of slave trader Edward Colston during the weekend’s Black Lives Matter protests. The exchange went like this:

Interviewer: The police are accusing those responsible of criminal damage. Do you agree?

Marvin Rees: As an elected politician I cannot condone criminal damage …

Interviewer: The police have called it criminal damage. They say they are now investigating it, although they didn’t seem to do much to intervene to stop it being pulled down at the time. Should anybody involved be charged with criminal damage?

Marvin Rees: That’s up to the criminal justice system isn’t it? We do live in a country where we should have a criminal justice system that works without favour or fear. 

Interviewer: And you’re the mayor of Bristol so would you encourage the police to charge anyone who was involved?

Marvin Rees: I don’t really intervene in criminal matters like that.

Unlike many Conservative MPs (see my previous posts), Rees appears to understand that politicians should not make pronouncements on how the police should interpret and respond to specific incidents.

“A tactical decision”

The policing of the Bristol incident is also a good illustration of the types of decisions police officers have to make quickly in the context of incidents unfolding in front of them. Avon and Somerset police decided not to intervene to prevent the slave-trader’s statue being toppled and thrown in the river because they judged that to do so could have created more disorder and thus greater threat to safety.

“We made a very tactical decision. That to stop people may have caused further disorder. And we decided that the safest thing to do in terms of our policing tactics was to allow it to take place. … This was a very difficult policing operation. There’s a lot of context that sits around it. I believe we did the right thing.”

Superintendent Andy Bennett of Avon and Somerset police

In this instance, the police chose minimising disorder and protecting public (including officer) safety over preventing an act contrary to the criminal law. This order of priority (safety over crime prevention) is somewhat reflective of Lord Scarman’s assertion in his 1981 report on the Brixton riots the police should seek to enforce the law but only where possible to do so without “endangering normality” (p. 62). This he identified as being the core of “police discretion”.

“the art of suiting action to particular circumstances”

“successful policing depends on the exercise of discretion in how the law is enforced … Discretion is the art of suiting action to particular circumstances

The Brixton Disorders, 10-12 April 1981. Report of an Inquiry by the Rt. Hon. The Lord Scarman (p. 63)

This all sounds eminently sensible of course, although apparently not everyone agrees (the Home Secretary Priti Patel apparently held a “firm” conversation with the Chief Constable, and a would be Police and Crime Commissioner for Avon and Somerset criticised the police for “surrendering control”). Yet the choice made by Avon and Somerset police seems to exemplify an approach that we could see as positive – putting safety first, recognising the wider “context” as Supt. Bennett put it.

But, we can’t forget that the “context” for the Bristol protest was a wave of mass protests worldwide that were an outpouring of anger, grief, resistance and calls for fundamental change, in the face of decades of unequal and violent police actions in the US, the UK, and elsewhere.

Indeed, whilst police in Bristol were dealing with safety on one day, in relation to one particular incident, the broader context is one in which the police have manifestly and dramatically failed to keep black people safe from violence and oppression and indeed have all too frequently been directly implicated in that violence and oppression.

The real “context” for the protests

In England and Wales, the data consistently show that black people are more likely to be stopped, searched and subjected to the use of force by police than any other ethnic group. Attempts to explain this away as not about skin colour but about differences in behaviour have been repeatedly and convincingly debunked.

This, of course, is part of the “context” referred to by Supt. Bennett of Avon and Somerset police. But also part of that context are some specific characteristics of the city of Bristol, and the experiences of the black community there.

The Bristol Bus boycott of 1963 and the St. Paul’s uprising in 1980, both dramatically highlighted their experiences of discrimination. But a more recent incident, where Avon and Somerset police officers tasered one of their force’s own race relations advisors after mistaking him for a different black man, indicate that these issues are far from historical.  

“Common-sense [and] sound judgment”

After the protests on Sunday, the Chief Constable of Avon and Somerset Police gave his full support to his officers.

“They responded with common-sense, sound judgment and in the best interests of public safety”

Avon and Somerset Chief Constable, Andy Marsh

Defending this position, Marsh invited us to imagine scenes of clashes between police and protestors, with police perceived to be protecting the image of a known slave-trader. This would indeed have made for uncomfortable viewing. But, when PC Claire Boddie used her “discretion” to discharge her taser into 63 year old Judah Adunbi, leaving him lying motionless in the street, what was that street called? Colston Road.

Although the Independent Office for Police Conduct recommended that Boddie face misconduct charges for using unreasonable force she was cleared of misconduct, and also cleared in a criminal prosecution for assault.

Police will have to do more to respond to the issues raised by protesters

Black people in Bristol have not forgotten Judah Adunbi’s experience. Even before the weekend’s demonstrations tensions were flaring following the forcible arrest of a black man in a St. Paul’s street. So, whilst the decision to stand back as Colston’s statue was dumped in the harbour seems a measured and sensible approach in this specific instance, much more is still required from police by way of response to the issues raised by these protests.

Dominic Cummings, “reasonable excuses” and police discretion

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. 

Durham Police take no action against Dominic Cummings for apparent breach of coronavirus regulations

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):

1. Interpretation

“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.

Police and courts, not MPs, should decide whether Dominic Cummings broke the law

“What’s clear is he didn’t break the law, he didn’t break the rules, he sought to protect his family and he also sought to ensure that the risk of anyone in his family infecting anyone else was absolutely minimised.”

So stated Michael Gove on the Radio 4’s Today programme just after quarter past eight on the morning of Tuesday 26th May. He was, of course, talking about the decision taken by Dominic Cummings, the Prime Minister’s special advisor, to drive his wife and son 260 miles away from their family home in London when he believed himself and possibly also his wife to be infected with coronavirus. Whilst in County Durham, Cummings went on to make a further 50 mile round trip from Durham to Barnard Castle in an attempt, he says, to ensure his eyesight would be OK for the return drive to London. Cummings made his journeys when the government guidance specifically instructed citizens who felt they could be infected to “Stay at Home” and when it was an offence for anybody (whether or not they thought they were infected) to leave their homes except if they had a “reasonable excuse” as set out in the relevant legislation.

A reasonable excuse?

Presumably, then, when Gove stated that Cummings “didn’t break the law” he meant that Cummings had a “reasonable excuse” in law for being outside of his home for both of the journeys in question. But what could that excuse be? In neither case were Cummings and his family exercising, obtaining basic necessities, donating blood or attending the funeral of a close family member. They were not travelling for the purposes of work, seeking medical assistance or providing care or assistance to someone else. They were not fulfilling a legal obligation or moving house. And they were not accessing a critical public service available to them or trying to avoid injury or illness or escape from harm. According to Cummings’ own account, when they left London he and his wife were trying to make sure that if they should need help looking after their son that the people they would prefer to have provide that help would be conveniently near-at-hand. It takes a significant stretch to identify this reason for travelling with any of the “reasonable excuses” identified in the legislation.

In other words, even before taking their ludicrous Barnard Castle “eyetest” drive, it seems highly likely that in travelling to Durham, Cummings (and his wife) committed offences under the coronavirus legislation. In his 10 Downing Street Rose Garden statement, Cummings sought to suggest that he had an excuse for his lockdown travel by alluding to the government guidance on self-isolating if living with children. This guidance does say you should “keep following this advice to the best of your ability”. However, this relates to self-isolating if you suspect you have coronavirus, rather than to the general lockdown conditions imposed on everyone. Moreover, it is only guidance. It has no status as a legally permissible “reasonable excuse” for not adhering to the rules set out in the lockdown legislation passed on 26th March.

“the law’s majestic equality”

Likewise, Cummings’ suggestion in his statement that “the legal rules inevitably do not cover all circumstances” is simply wrong. The law does “cover all circumstances”. It applies to us all, whatever our situation in life. This is what Anatole France in his novel The Red Lily, referred to ironically as the law’s “majestic equality”:

“The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”

Anatole France

However, it is clearly not possible for lawmakers to anticipate or specify in advance every set of circumstances under which a person may come to break the law. This is one of the basic justifications for granting the police discretion in the application of the law. Indeed, when they introduced the lockdown restrictions, the government were keen to stress that the police would apply “common-sense and discretion” in their application.

In stating unequivocally that Cummings has not broken the law, Michael Gove has created an extremely difficult situation for the police, who are already in unfamiliar and uncomfortable territory. Under the coronavirus legislation, the police have the power to issue a fixed penalty notice to anyone they “reasonably believe” to have committed an offence under the regulations. But, it would be a bold officer indeed who would issue that ticket now and thus directly contradict a government minister.

Gove, we are often told, is a “highly intelligent” man. He is also a former Justice Minister. Surely, then, he must be aware that whilst the government and parliament may make the law it is not their place to determine in specific cases whether or not it has been broken and what should be done about it. That is the role of the criminal justice system. In the first instance, this means the police. Cummings’ supporters have complained about “trial by media” whilst delivering their own verdict in tweets and interviews with journalists. This is intensely hypocritical. Furthermore, when people in positions of power (like government ministers) publicly assert that an individual has not broken any rules then their assertions must surely be recognised as having the potential to frustrate (if not “pervert”) the course of justice.

A truly worrying precedent

In truth, Cummings is surely only one among many people who will have taken decisions about how to behave during lockdown based on what is most convenient and congenial for them and their family. But, like other public figures whose actions have been questioned at different points during the lockdown period (e.g. Labour MP Stephen Kinnock and Cabinet minister Robert Jenrick) his position has rightly made his actions the focus of intense media scrutiny. What is most striking though in the case of Cummings’s behaviour is that the ensuing scramble to protect him has seen high profile and experienced politicians like Michael Gove make statements that suggest a lack of basic awareness of the content of their own legislation. Perhaps most worryingly though, Gove and many of his Cabinet colleagues have shown a lack of appreciation for the principle that whilst parliament makes laws it is for the police and courts to interpret and enforce them. This creates a truly worrying precedent.