The ‘Cummings Defence’

With government mired in the imbroglio surrounding Dominic Cummings’ alleged breach of the lockdown legislation, Andrew Gilmore, Head of Grosvenor Law’s Crime department takes a look at the relevant law.

Turn on the news or read a newspaper at the moment and the headlines are dominated by one issue – Dominic Cummings and his various trips to and around the north east during the height of the COVID-19 lockdown in late March and early April 2020.    There is mounting pressure for the government to review the summary fines handed out to over 14,000 people, and in particular for those who had been forced to travel for reasons of childcare, which was Mr Cummings’ purported excuse for his initial travel.

So, what were the actual lockdown rules for persons looking to travel during the Easter bank holiday?

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (‘the Regulations’)

The Regulations were brought into force in haste at 1.00pm on 26 March 2020, the day before Mr Cummings’ trip to County Durham.

Its scope was wide and far-ranging, dealing with the closure and restrictions of business, and curtailing personal liberties and the right to hold gatherings.  Reviews of this legislation have been made by the government every 21 days and it has been subsequently altered/amended.

The law relating to personal restrictions on movement are found under section 6 of the Regulations, and are as follows:

 ‘During the emergency period, no person may leave the place where they are living without reasonable excuse’ (section 6(1) of the Regulations).

Section 6(2) of the Regulations continues at length as to what constitutes a reasonable excuse.  It should be noted that the regulations specifically state that reasonable excuses ‘include’ (but is presumably not limited to) the following examples:

    • to obtain basic necessities, including food and medical supplies for those in the same household (including any pets or animals in the household) or for vulnerable persons and supplies for the essential upkeep, maintenance and functioning of the household, or the household of a vulnerable person, or to obtain money from certain scheduled businesses;
    • to take exercise either alone or with other members of their household;
    • to seek medical assistance;
    • to provide care or assistance, including providing relevant personal care for vulnerable groups (as defined in other legislation);
    • to donate blood;
    • to travel for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible for that person to do that work from home;
    • to attend a funeral of—

(i) a member of the person’s household,
(ii) a close family member, or
(iii) a friend if they do not have family of their own attending;

    • to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings;
    • to access critical public services, including—

(i) childcare or educational facilities (where these are still available to a child in relation to whom that person is the parent, or has parental responsibility for, or care of the child);
(ii) social services;
(iii) services provided by the Department of Work and Pensions;
(iv) services provided to victims (such as victims of crime);

  • to fulfil care of a child that does not necessarily reside with a particular parent (for example, to continue child contact arrangements or collecting children from boarding school);
  • in the case of a minister of religion or worship leader, to go to their place of worship;
  • to move house where reasonably necessary;
  • to avoid injury or illness or to escape a risk of harm.

Any breach of section 6(1) of the Regulations, without reasonable excuse would initially be liable to a fixed penalty notice of £60 (£30 if paid within 14 days).  This was increased to a £100 fine on 13 May 2020.   Repeat offenders will see this fine doubled up to a maximum of £960 (raised to £3,200 after 15 May).

The apparent lacuna from the list of ‘reasonable excuses’ are Mr Cummings’ various justifications for his actions in late March and early April.  He argues that he acted according to the law and Government advice (including advice from the Government’s Chief Medical Officer).  This raises the question: is the list of reasonable excuses exhaustive or does it merely contain examples?   If the former, then on its face Mr Cummings appears to have broken the law.  If the latter, then Mr Cummings might have a defence on the basis that he had a reasonable excuse for not complying with the Regulations.

Of course, if Mr Cummings is correct that we are allowed to exercise personal discretion when determining what is reasonable, then the Government should have ensured the Regulation was drafted accordingly.  It is ironic that the Prime Minister’s most senior advisor is responsible, unwittingly, for identifying serious deficiencies in the Regulations – and the potential loopholes.  The episode is a salutary warning of the dangers of quickly drafted legislation without proper scrutiny.

The Coronavirus pandemic has had a serious impact on the entire country.   If you or your business have been affected by the Covid-19 lockdown and you need legal advice in relation to any issue, we at Grosvenor Law can provide a bespoke and personalised team of lawyers to address urgently your needs.

Andrew Gilmore is Head of the Criminal Team, specialising in money laundering, fraud, asset recovery and all aspects of criminal law.

James Clark is an associate in Grosvenor Law’s criminal team, where he advises complainants and suspects involved in criminal investigations and proceedings relating to allegations of fraud, bribery, money laundering and related offences.

The contents of our blog posts do not constitute legal advice and are provided for general information purposes only