People hauled to court for breaking coronavirus restrictions could start using the ‘Cummings defence’ to argue against charges or get out of paying fines, lawyers have warned.
Criminal defence lawyer Raj Chada said that although the explanations given by PM Boris Johnson’s chief advisor Dominic Cummings would neither set any formal precedent nor automatically create grounds to appeal fines or convictions for breaches, they could reinforce the impression that the regulations are ‘vague’ and ‘subject to challenge’.
Mr Cummings is accused of flouting the very same ‘stay at home’ rules he helped create by driving 260 miles to Durham while his wife had coronavirus symptoms. He insists he acted ‘reasonably’ and on ‘instinct’ when confronted with concerns about who would look after his child if they were incapacitated by the illness.
But Mr Chada suggested the incident ‘will be used endlessly in court’ by defendants arguing ‘about what “reasonable excuse” constitutes’, adding: ‘A client will say in court, “I had childcare difficulties just like Dominic Cummings”.’
Mr Chada, head of the criminal defence department and partner at firm Hodge Jones and Allen, added: ‘I think that it means that the police are going to be very cautious about issuing fixed penalty notices (FPNs), that clients are going to contest and that could result in more trials about ‘what is a reasonable excuse.’
Kirsty Brimelow QC is a leading criminal barrister at Doughty Street Chambers and has helped produce a guide to coronavirus offences designed to assist lawyers, police and the public alike.
She said the enforcement of them requires a ‘degree of co-operation’, adding: ‘There also is a social contract where people respect and trust the institutions that had made the law.’
But she said: ‘The difficulty is when that trust breaks down, people no longer see why they should play their part.
‘The justification put forward by Mr Cummings for breaching the Government’s own guidance – of which there is no doubt – undermines trust.’
Police officer says people are using Dominic Cummings as a lockdown excuse
Ms Brimelow suggested Mr Cummings ‘does have a case to answer as to whether he broke the law’, adding: ‘The upholding of his conduct as acting on “instinct” by the Prime Minister and as doing nothing wrong by the Health Secretary Hancock, whose powers brought in the emergency laws, makes future enforcement by police very difficult and runs the risk that those issued with fixed penalty notices may refuse to pay on the basis that they too were acting on instinct.
‘This would not be a legal defence but it is difficult for people to understand that it can be used by the Prime Minister to justify the behaviour of Mr Cummings and yet would not apply to them.’
When asked whether the police could find it more difficult to enforce lockdown restrictions in the wake of the Cummings controversy, a National Police Chiefs’ Council spokesman said: ‘The overarching aim of the police response has always been to encourage people to follow the regulations and thereby reduce then impact of the virus on public health.
‘Each case will be different and require a response appropriate to the circumstances and in accordance with the law. It is not the police’s role to either enforce or interpret Government guidance.’