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Michael Mansfield KC Instructed to Seek Judicial Review of DPP’s Failure to Investigate Alleged Breaches of Coronavirus Regulations in London by Dominic Cummings
Martin Redston, an engineer from London, is seeking judicial review of the DPP’s failure to investigate the actions of Dominic Cummings, the chief advisor to the Prime Minister Boris Johnson. Mr. Redston is concerned that the rule of law should apply for all persons, irrespective of any friendships in government. He has witnessed the significant damage to the public health measures put in place, and the vital message for compliance. The public perception has been formed – and fostered by the inaction of the DPP – that those who do not comply should be fairly and properly investigated for alleged breaches.
Dominic Cummings left London on 27th March and travelled approximately 260 miles north to Durham in a car together with his wife and child. At the relevant time the law required all persons to remain at home save for limited prescribed purposes. The journey would take 5 hours or so, not allowing for breaks and stops on the way.
On the same day, 27th March, and before leaving London, Mr. Cummings had left work and gone home to see to his wife, and then returned to work in the afternoon, despite his wife exhibiting symptoms of Covid-19. Mr. Cummings subsequently, together with his wife and four year old child, also took an unnecessary car journey to Barnard’s Castle which, he has said, was in order to test his eyesight while driving, in preparation for a longer journey back to London.
A number of individuals in public office who have flouted those strict rules have resigned. That provided some accountability for breach of the law by those who are central to the public health message and the need to encourage full compliance.
In respect of Mr. Cummings, however, representatives of the Government have taken to social media in support of him. The Attorney-General has tweeted in support of Mr. Cummings’ actions. This raises a real concern over the state’s obligation properly and fairly to investigate the case of Mr Cummings where a law officer has prejudged it by issuing a peremptory statement that sought to exculpate Mr Cummings, without due process of the law. Since these events three months has passed, and there has been no indication that any state authority shall inquire into the matters relating to the London breaches. Indeed there have been some very quick indications that no inquiry would follow from the briefest of possible considerations by some state bodies.
Mr. Martin Redston, like many other citizens, has fully complied with the Government’s lockdown requirements at all times. By 22nd May it was known to the public and the police that
Mr. Cummings had left his house in London twice on 27th March 2020.
Ultimately Mr. Cummings then held a press conference on 25th May ending with the following words: “I know the British people hate the idea of unfairness. I wanted to explain what I thought, what I did and why, over this period, because I think that people like me who helped to make the rules should be accountable for their actions.”
Last Wednesday, 3rd June, Mr. Redston’s lawyers wrote to the Director of Public Prosecutions expressing concern that no action had been taken in relation to the alleged breaches by this public figure in London. Mr. Redston is particularly concerned about the absence of any state inquiry. This inaction may result in the loss of additional evidence which could otherwise be gathered by prompt investigation. This in turn could lead to the serious loss of public confidence in the accountability of government employees. There is a current public health emergency and Mr. Redston is alarmed at the inactivity over the actions of Mr. Cummings which could be contributing to breaches of the lockdown rules at a time when this will cost lives.
Despite setting a deadline for substantive reply that has now passed, the only response was by email on 8th June 2020 wherein the DPP notified Mr. Redston’s lawyers that “This has now been passed to colleagues in our Special Crime Division, who will provide a response to you in due course.” This reply does not suggest that any investigation has been instigated, otherwise they would have said so.
When further urgent confirmation was sought that there was any active consideration taking place, it was met by silence. It seems clear that the public must be at the forefront of the seeking of a just process in this case to restore public confidence.
In the absence of the requested confirmation that there is an open and active consideration of Mr. Cumming’s actions in relation to the question of prosecution for breach of Regulation 6 of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020/350 Mr. Redston has no option but to pursue judicial review proceedings against the Director of Public Prosecutions for such failures.
The case will be funded by way of crowd funding, and donations pledged via Crowd Justice https://www.crowdjustice.com/case/investigatedominiccummings/
We encourage all those who can contribute and who feel that justice must be done and seen to be done to do so.
The action is headed by Michael Mansfield KC, leading counsel Philip Rule, who are instructed by Hackett & Dabbs LLP.
On 9th June 2020 the following was sent by Lorna Hackett, Head of Legal Practice at & Dabbs LLP, in a letter before action on behalf of Mr Redston to the Director of Public Prosecutions, Max Hill KC:
URGENT – LETTER BEFORE ACTION – JUDICIAL REVIEW
Dear Mr. Hill KC,
Re: Actions of Dominic Cummings during the lockdown
We write further to our letter of yesterday’s date in which we requested clarification on the response that you sent to us by email. This simply informed us that the matter of Mr. Cummings’ actions during the lockdown had been passed to colleagues in your Special Crime Division, and that they would provide a response in due course.
Having received no response to our letters by close of today, 9th June 2020, we are writing to provide you with notice, in accordance with the Pre-Action Protocol for Judicial Review, of our intention to commence judicial review proceedings should this matter not be capable of being resolved satisfactorily.
We require your substantive response to this Letter Before Action before 4pm on Thursday 11 June 2020. This truncated timetable is necessary and proportionate in light of the fact that there has been and continues to be:
1) a very serious loss of public confidence in the due process of the rule of law and confidence in the accountability of government officers and employees, directly harmful to the need for public compliance with the rules and guidance in relation to the measures to combat a serious public health threat to life and of serious harm and injury; and
2) the potential that the absence of a thorough police investigation or state inquiry risks the loss of additional evidence that might be gathered by prompt investigation (for example the CCTV, ANPR, or debit or credit card records to indicate the events and timings of the journey to Durham).
Mr Martin Redston
The Director of Public Prosecutions
Details of the matter
You are asked to please note the content of our letters of 3 June and 8 June which concern the failure to investigate Mr. Cummings’ identified actions. Those letters should be read as incorporated herein. We attach further copies for your convenience.
We have raised with you the actions of Dominic Cummings, the chief advisor to the Prime Minister Boris Johnson. We are aware that, during the lockdown which was imposed on 23rd
March by the Prime Minister, Dominic Cummings left London on 27th March and travelled approximately 260 miles north to Durham in a car together with his wife and child. His wife was infected by coronavirus at the time. At the relevant time the law required all persons to remain at home save for prescribed purposes a healthy person might need to leave or in case of an actual emergency. The journey would take 5 hours or so, not allowing for breaks and stops on the way.
In the home, under strict guidance in the interests of public health, the person would selfisolate and seek to distance themselves as an infected person from the members of the same household. The other members of the household were not to leave the house for 14 days, so as to prevent spread of the infection to others in the community.
On the same day, 27th March, and before leaving London, he had left work and gone home to see to his wife who was ill, and then returned to work in the afternoon, despite his wife exhibiting symptoms of Covid-19.
It is also the case that Mr. Cummings left the property at which he was staying in Durham on 12th April with his wife and child, and travelled 26 miles by car to Barnard Castle, in order, he has said, to test his eyesight in advance of attempting the lengthy journey back to London
In reply by email dated 8 June 2020 you have stated that “This has now been passed to colleagues in our Special Crime Division, who will provide a response to you in due course.”
When further urgent confirmation was sought by urgent letter on 8 June 2020 for a confirmation that there was any active consideration taking place, it was met by silence. We have asked that you:
“confirm if there is presently an open and active consideration of the actions of Mr. Cummings during the lockdown period to which we have referred in our letter dated 3 June 2020? i.e. is a decision, concerning those specific events, still to be reached in relation to the question of prosecution for breach of regulation 6 of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020/350?
If the answer is yes, we ask you to indicate when this consideration commenced, and by when you are expecting to reach a decision. We ask for an explanation as to why no decision has been reached to-date.”
You have not responded to this request.
Grounds for judicial review
As a consequence of the above matters we note that the grounds for judicial review arise-
(1) Unreasonable failure to respond in substance to our requests contained within correspondence of 3rd and 8th June 2020; and/or
(2) Failure to meet the requirements of transparency and openness required of a public body; and/or
(3) Unreasonable or otherwise unlawful failure to inquire or investigate the actions of Dominic Cummings to determine whether or not to prosecute for any offence (including but not limited to a breach of regulation 6 of the Health Protection (Coronavirus, Restrictions) (England) Regulations, S.I. 2020/350, or any common law offence of public nuisance given the potential to infect others by travelling across the country from London to Durham); and/or
(4) Failure to exercise the discretion to prosecute at all or lawfully; and/or
(5) Failure to consider all relevant material and/or material matters were not taken into account or properly taken into account; and/or
(6) Failure to discharge the duty of due and sufficient enquiry; and/or
(7) The decision taken or absence of a decision is Wednesbury unreasonable or irrational; and/or
(8) Failure to consider and discharge the positive obligations of the state to act to conduct an effective investigation into the alleged offence, in order to take a reasonable step to support effective measures to protect to the greatest extent possible against the risk to life or against serious bodily harm so as to discharge the positive obligations imposed by Articles 2 and/or 3 of the European Convention on Human Rights (“ECHR”).
The inaction is not compatible with these protective and positive obligations of the state which must take reasonable steps to ensure public safety to the greatest extent practicable by the maintenance of public confidence in accountability to and enforcement of the law designed to protect all society including the most vulnerable from the ongoing threat of COVID-19.
We also invite you to confirm that you would be content for a private prosecution to take place and would not exercise your power to take over such prosecution with a view to any discontinuance.
Should judicial review proceedings be necessary, we shall seek the following by way of remedy:
i) A direction for a substantive reply to the requests contained within our correspondence of 3rd and 8th June;
ii) An order that the issues be fully investigated and considered; or if a decision has been reached not to consider prosecution, a full explanation of the reasons for that decision be provided; and
iii) Should the decision have been taken not to prosecute or consider prosecution an undertaking that you shall not seek to interfere in a private prosecution.
You are respectfully reminded of the duty of candour. We invite disclosure of all material facts and documents that might assist the Claimant to present his best case to the Court.
We also make specific request for disclosure of all communications that your office or yourself have received from any minister, departmental official, or mandarin or person associated with the Cabinet, Prime Minister, or affiliates or agents or representatives of the same, referring to the question of Mr Cummings in any way.
We look forward to your response by 6pm on Thursday 11th June 2020. We reserve the right to issue proceedings thereafter without further recourse to you.
Hackett & Dabbs LLP