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Police decision on Cummings: What does the law say?

Boris Johnson has continued to stand by Dominic Cummings.

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Dominic Cummings leaves his north London home (Victoria Jones/PA)

Dominic Cummings leaves his north London home (Victoria Jones/PA)

Dominic Cummings leaves his north London home (Victoria Jones/PA)

Durham Constabulary concluded the Prime Minister’s chief adviser may have committed “a minor breach” of lockdown rules, but will face no further action.

– What does the law say?

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 say “during the emergency period, no person may leave the place where they are living without reasonable excuse”.

Under regulation six, a reasonable excuse includes the need to obtain basic necessities, like food and medical supplies for your household or “a vulnerable person”.

The list of examples is not exhaustive, but other reasons include: to exercise alone or with other members of their household; to work; to access “critical public services” like childcare; to move house “where reasonably necessary” and to avoid “injury or illness or to escape risk of harm”.

It describes “the place where a person is living” as “the premises where they live together” including any outbuildings, garden or grounds.

Police officers have to use their discretion to decide what other circumstances would count as a breach.

If they do decide someone has broken the law by being out without a reasonable excuse, under regulation eight they have the power to direct someone to return home.

Officers were told “driving is not unlawful” during lockdown.

– What did the police say about the initial trip from London to Durham?

The force does not consider Dominic Cummings committed an offence by making this trip.

Officers may have considered it was justified in light of his account of events.

At his press conference, Mr Cummings cited the need for childcare and concerns around safety at their home, as reasons for deciding to make the trip.

He told reporters there was a “very bad atmosphere around my home” over reports claiming he opposed lockdown, and said he was subject to “threats of violence”, leaving him worried about the safety of his family while he was at work.

It may be that officers considered whether the reasonable excuse to leave a property under the law to avoid “injury or illness or to escape risk of harm” applied in this circumstance, while also looking at his comments on the need for childcare.

– What about the trip to Barnard Castle?

The force concluded “there might have been a minor breach of the regulations that would have warranted police intervention”, adding that had he been stopped by an officer during the journey it was likely he would have been advised to go back to the property.

Lawyers suggest this shows police consider he did break lockdown rules because, according to the law, an officer would only be able to direct someone to return home if they believed they were in breach of the legislation in the first place.

As it is considered a minor breach it would not warrant further action, as guidance on the proportionate use of the powers dictates.

– Does this contradict other guidance police were given about how to enforce the laws?

Potentially.

Advice issued to forces in the week leading up to the Easter weekend on how to interpret the legislation, using information from the Crown Prosecution Service, said driving to the countryside and walking – when far more time is spent walking than driving – would be considered a reasonable excuse.

But a short walk to a park bench when the person remains seated for a much longer period was not likely to be considered reasonable by police.

– Did his actions go against Government guidelines in place at the time?

Yes and no.

Mr Cummings said he was following Government guidance on childcare, telling reporters the rules made clear that if you are dealing with small children “that can be exceptional circumstances”.

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(PA Graphics)

(PA Graphics)

Press Association Images

(PA Graphics)

At the same time, Government advice issued on March 27, the day he decided to drive to Durham, said the public should “stay local and use open spaces near to your home where possible”, adding: “Do not travel unnecessarily.”

Ahead of the Easter weekend, when Mr Cummings went to Barnard Castle, Health Secretary Matt Hancock acknowledged that the bank holiday would be a “test of the nation’s resolve”.

But he said the clear message from NHS staff battling to save sick patients was “they need you to stay at home”.

Durham Constabulary said: “We are concerned here with breaches of the regulations, not the general Government guidance to stay at home.”

– So, did he break the rules or not?

Lawyers analysing the police statement interpret it as saying there is enough evidence to suggest he did breach the rules, but that it is for a court to decide.

Others have said the regulations are too vague, making them almost impossible to enforce.

But Boris Johnson and several cabinet ministers have continued to stand by Mr Cummings, and support his justification that he acted “reasonably and legally”.

Some other commentators with a background in law and order have said the trip to Barnard Castle is hard to justify, and that while debate continues to rage about whether he broke the law, they suggest it is clear he went against Government guidelines and the spirit of the “stay at home” message.

PA