Each of the investigations, into Dominic Cummings’ blocking trip to Durham, Partygate and then Beergate, ended with dramatically different results. The variation is a consequence of changing Covid laws that applied in different places, the application of exceptions to the restrictions and changing police positions on whether to penalize breaches retroactively.
How did the law work?
A set of laws called the Health Protection Regulations have changed throughout the pandemic to impose different restrictions, including national lockdowns. They set legal limits on concentrations, but provided defenses and exemptions. At all times the defense of “reasonable excuse” was incorporated into the law and the lists of examples given in the legislation were not exhaustive. The wording of the laws in place during both Beergate and Partygate read: “A person commits an offense if, without reasonable excuse… [they] violates a constraint.” It means the police had the discretion to decide whether someone had broken the law or had a legal defense for doing something that appeared on the face of it to be a Covid violation. Investigators accepted that the rally attended by Sir Keir Starmer and Angela Rayner in Durham was covered by a legal exemption for work, while the impromptu birthday party that led to fines for Boris Johnson and Rishi Sunak was not.
What laws were in place during Beergate?
At the time, the “step two” Health Protection Regulations were in place, making indoor gatherings of more than two people illegal unless they fell under one of a number of exemptions. These include being “reasonably necessary for work purposes”. Durham Police have determined that the exemption applies to the Labor rally at Durham’s Miners’ Hall on April 30, 2021. It was held during the campaign for the Hartlepool by-election and the upcoming local elections. When asked why he was filmed drinking a curry beer takeaway, Sir Keir said: “I just had something to eat while working late at night, as any politician would do days before an election.” The default fine for taking part in an assembly or committing other offenses was £200, although much larger fines could be imposed for large events or organisers. The police did not detail their findings in full, but said in a statement: “There is no case for us to be held liable for a breach of the regulations, due to the application of an exception, namely reasonably necessary work. “Accordingly, Durham Police will not issue any fixed penalty in relation to the gathering and no further action will be taken.” Pictures have emerged of the Labor leader having a beer and a meal with colleagues in Durham (Provided)
What laws were in place during Partygate?
Because different gatherings took place at different stages of restrictions, the Metropolitan Police fined people for breaking six different offences. For the bring-your-own-drink garden party on 20 May 2020, which the Prime Minister said he attended for 25 minutes thinking it was a “Labour event”, attendees were fined for “being outside where they lived without reasonable excuse”. . Because Downing Street is the Prime Minister’s official residence, it was not within the scope of the offence, but staff and any other non-residents were. The events held on the remaining seven fined dates were in breach of different Covid laws, which restricted different types of gatherings. The flexible “reasonable excuse” defense in place, meaning the police had to consider individual reasons for apparent breaches on a case-by-case basis. There was also the broad exemption for gatherings that were “reasonably necessary for business purposes” during events attended by Boris Johnson and the Beergate rally on April 30, 2021 in Durham. This is likely to be the key defense advanced by many attending the Downing Street rallies, many of which followed the end of the working day. Downing Street rally attendees given chance to make ‘reasonable excuse’ (PA Wire)
What did the police say about their reasoning?
Scotland Yard declined to comment on individual cases, but confirmed it gave each person being considered for a fine the opportunity to provide a reasonable justification for their presence at gatherings in written questionnaires. A statement said officers were looking into both the circumstances of the incident and the “actions of the individual”. “Each line of inquiry looked at the date, the circumstances behind each incident and the individual’s actions, compared to the law at the time, to determine whether their conduct met the criminal threshold for an FPN referral,” the statement said . “We took great care to ensure that for each referral we had the necessary evidence to prosecute FPN in court if they were not paid.” The police first gathered evidence of an event and then carried out separate assessments of each person present. To fine them, police said they needed a “reasonable belief that the person had committed an offense under the regulations”. They looked at whether the gathering itself met an exemption under Covid laws, and if it didn’t, “whether the person had a reasonable excuse for attending that gathering”. Durham Constabulary has released less information about its process but is known to have sent a questionnaire, likely according to Metropolitan Police documents, to attendees. The force said it had obtained “a significant amount of documentary evidence and witnesses, which identified the 17 participants and their activities”.
Did the police treat politicians’ rallies differently than the public?
Police across the country have had a policy against retrospective searches for Covid throughout the pandemic, meaning the vast majority of fines have been issued on the spot by officers. This meant that people were often sanctioned without formal evidence gathering or interviews and had to risk prosecution to challenge them. Because both the Partygate and Beergate investigations were rare retrospective investigations, the process was much more formal and potentially resulted in people having a better chance of putting forward a defense before being fined. Kirsty Brimelow QC, a human rights barrister who has represented people fighting for Covid fines, told the Independent: “What I’ve seen in cases up and down this country is that the ‘reasonable excuse’ part has never been applied – the police will only consider exceptions around the gathering itself. “In the cases I’ve looked at it’s been ‘well, if you think you have a defence, you can take your chances in the magistrates’ court.’ Durham Constabulary previously investigated Dominic Cummings, then the prime minister’s chief adviser, for moving his family from London to the North East while he was infected with coronavirus during the first national lockdown. The Prime Minister’s chief adviser Dominic Cummings was forced to issue a statement defending his trip to the North East in May 2020 (AFP/Getty) Officers concluded that he may have committed a “minor breach” of the law by driving to Barnard Castle, but that to issue a fine months later “would be tantamount to treating Mr Cummings differently from other members of the public”. The force added: “Durham Police has not taken retrospective action against any other person.” After Partygate, there is now a precedent for issuing retroactive fines for Covid offences. The Metropolitan Police had initially resisted the move itself before carrying out a U-turn amid widespread anger over reports of several illegal parties in Downing Street. Following the Cummings scandal in 2020, commanders responsible for the police response to Covid had issued guidance to all forces saying retrospective investigations could be carried out into gross breaches if they were meritorious, proportionate and in the public interest. But deciding what meets these criteria still depends on individual forces Durham Police initially decided not to take any action over images of Sir Keir drinking a beer inside Labor MP Mary Foy’s constituency office, which resurfaced and were widely shared by the Conservatives during the scandal Partygate. She said she changed her position in May “after receiving significant new information.”
