‘Cummings defence’ could be used endlessly in court, lawyer warns

Reasons Dominic Cummings gave for his alleged breach of lockdown rules could be used “endlessly” in court to debate what constitutes a reasonable excuse, a lawyer has warned.

Raj Chada, head of the criminal defence department and a partner at firm Hodge Jones and Allen, said explanations given by Cummings would not set any formal precedent and would not mean people could automatically appeal against fines or convictions. But he reiterated concerns that the regulations put in place are “vague” and “subject to challenge”.

He told the PA news agency: “However, it will be used in court endlessly about what ‘reasonable excuse’ constitutes.

“A client will say in court, ‘I had childcare difficulties just like Dominic Cummings’.

“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, a barrister at Doughty Street Chambers, said the enforcement of lockdown laws in the UK required 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 told PA: “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.”

She also claimed 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 [Matt] 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 spokesperson said: “The overarching aim of the police response has always been to encourage people to follow the regulations and thereby reduce the 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.”