Partygate: There was no good legal reason to redact Sue Gray’s report
In recent weeks, senior civil servant Sue Gray has been cast into the political and legal limelight. In December Ms Gray (SG) was tasked with investigating suspected breaches of covid regulations which took place at No 10 Downing Street in 2020-2021. We now know there were 16 gatherings during this period, held either at No 10 Downing Street or the Department for Education, all referred to SG.
The most likely issue is whether these were 'work meetings' permitted within the covid regulations of the time, or social gatherings which were in clear breach. SG's job was described primarily as a fact-finding exercise, identifying those who organised and attended these events. The report is of acute political sensitivity because numerous Tory MPs have said that, depending on the facts uncovered, they may trigger a vote to challenge the leadership of Boris Johnson, potentially changing the UK Prime Minister. There is considerable public outrage at the idea that those who made the rules have broken them. Indeed, polls show that the majority of the public already believe that the PM should resign over the allegations.
The Metropolitan Police, having initially declined to investigate what it termed “retrospective breaches”, remained in contact with the Cabinet Office since December 2021. Having received SG's full report, on 25 January 2022, Met Police Commissioner Cressida Dick belatedly announced that police were in fact opening their own enquiry. She said retrospective investigations were carried out where for covid breaches where:
-the most serious and flagrant types of breach had taken place;
-there was evidence that those involved knew, or ought to have known that what they were doing was an offence;
-not investigating would significantly undermine the legitimacy of the law; and
-there was little ambiguity around the absence of any reasonable defence (bold added).
She added: “So in those cases, where those criteria were met, the guidelines suggested that we should potentially investigate further and end up giving people tickets.”
This investigation is now underway. On 28 January 2022, the BBC’s Home Affairs Correspondent reported that those suspected of breaching covid regulations will not be interviewed under caution. Instead, they will be written to about the allegations allowed to reply in writing about whether they had a reasonable excuse for their actions. Once replies have been considered, Fixed Penalty Notices (FPN) will then be sent out in appropriate cases. Prompt payment of an FPN would avoid a court hearing, but the accused party can opt for a trial in the magistrates' court if they either:-
- deny breaching covid regulations at all, or
- claim to have a reasonable excuse for doing so.
Why did the Police require that Sue Gray’s report be redacted?
On 28 January 2021, the lead investigator Met Commander Catherine Roper then released a statement as follows:-
“In order to protect the integrity of the police investigation, as is appropriate in any case, and to be as fair as possible to those who are subject to it, the Met has asked for minimal reference to be made in the Cabinet Office report to the relevant events. This will only be necessary until these matters are concluded, and is to give detectives the most reliable picture of what happened at these events”
This request for SG’s report to provide minimal reference to any breaches of the covid regulations is highly controversial, inducing howls of condemnation about redacting the key facts from such a politically sensitive report. On 11 February 2022, No 10 Downing Street confirmed that Boris Johnson has now received his questionnaire in an email from the Met Police. He is required to respond to it within seven days. For those accused who were deemed by police to have a potentially reasonable denial or reasonable excuse, it seems unlikely they would receive a questionnaire in the first place - see the Commissioner's starting point on 25 January 2022. We can therefore say that police feel there is "little ambiguity around the absence of any reasonable defence" in the PM's case. Indeed, police have based this view on the full SG report, which is likely to refer to a number of admissions. It is also said to include at least 300 photographs of the sixteen gatherings in question.
Should a FPN be issued but then contested by the accused, the case could rumble on for months in the magistrates' court. If redactions remain necessary ‘until matters are concluded’, this could mean months of delay before an unredacted report is published, particularly if the suspects ask for more time to respond, and/or opt for a court trial within a heavily backlogged court system. They might even call numerous defence witnesses to support their case that "I was told it was a work meeting" or "It was a surprise cake on my birthday". Some political opponents of the PM have gone so far as to accuse the Met Police of ‘riding to the rescue of the Prime Minister’ by buying him considerably more time, hoping the furore will die down.
How could SG's report have prejudiced a police investigation carried out entirely on paper?
A report about breaches of the covid regulations that does not identify those who breached the rules has failed to serve its original purpose, which was about providing swift political accountability. The police have caused this delay by dragging their heels for six weeks. But in seeking to provide possible reasons for this police redaction request, barrister Andrew Keogh, said it was essentially a tactical preference for police investigators:-
“[Sue Gray’s] report may well contain detail that could potentially advantage a suspect. One of the great advantages that police enjoy is control of disclosure during a police investigation. I can see why they would not wish to lose that”.
Matthew Scott, a criminal barrister and legal blogger, added:-
“Police should never want witnesses to be told what other witnesses have said, or certainly not in detail”
However, Lord Ken Macdonald QC, former Director of Public Prosecutions told Radio 4:-
“If we’re talking about fixed penalty notices – like parking tickets, essentially, then to take the rather grave step to delay a report that is going to shed public light o the subject matter of what may be a major public scandal, I think is undesirable and I think it may be a misjudgment. But only police know what it is that is really at play here… If we are simply talking about lockdown breaches and fixed penalty notices, this move by the police this morning seems to be disproportionate”
Lord Macdonald went on to say that if SG had uncovered more ‘complex practices’, the decision might be proportionate. He offered the hypothetical example of ‘the co-ordinated deletion of emails or text messages’ that might possibly have ‘raised the stakes and brought forward the consideration of more serious offending into play’.
Indeed, it is difficult to see how the police request for SG’s redaction makes logical sense given the very limited investigatory steps police are taking. All they are doing is asking for a written account from each accused person. Of course, police investigating a crime might prefer the suspect does not see what evidence police hold, in advance of questioning. But in straightforward cases dealt with by FPN, the suspect is often fully aware of the evidence - because they were confronted with it shortly after committing the offence. Often, the suspect has even bolstered the police evidence by making a confession. The same applies here. As Cressida Dick stated on 25 January 2022: all suspects have already been identified and questioned by SG, and only those with no realistic prospect of a defence are being contacted at all.
In this context, it is extremely difficult to understand how publishing SG’s full report could possibly have prejudiced what we now know is a paper-based exercise, with no restrictions on the accused parties. Presumably, each of them will remember what they told SG's team a few weeks ago. None will be under arrest, subject to bail conditions, or forbidden from contacting their co-accused. There is no reason the accused parties cannot swap notes, provided they do not collude to mislead police. They are free to ask their colleagues and former colleagues "So what did you tell SG's enquiry?" or "Which photos did you provide them with?" and then note down the response. They can also take legal advice before deciding on their response, and their lawyers can even liaise with lawyers for their co-accused. No verbal police questioning under caution will take place. So there are no 'tactical stages' of disclosure as the line of police questioning develops. There will be no dramatic ‘gotcha’ moments in a glass-walled interview booth.
In this context, is there any real chance of a tactical advantage to the police by redacting the very report to which all of its suspects have already contributed? No. Due to the police delay and prevarication since December, that horse has well and truly bolted.
Additionally, we know that police are not investigating any serious offences such as perverting the course of justice or misconduct in a public office which might have lead to arrests, interviews, or future jury trials (where there might be a good 'prejudice' argument). That fact is hardly likely to change as a result of the carefully-worded emails back from those accused.
In summary, there is no prospect of either prejudicing a potential jury, or tactically disadvantaging the investigators any more than has already happened. In this way, Commander Roper's redaction request of 28 January 2022 is very obviously disproportionate. In terms of political accountability, it rendered SG's report nugatory. Indeed, her report simply identified twelve gatherings which are being investigated by police. Such was her caution, SG was not even prepared to describe the remaining four gatherings which police were not investigating. One absurd outcome of this is that, once it became known police had declined to investigate a quiz night on 15 December 2020, a photograph was promptly leaked showing the Prime Minister from that very night. In response, the Met police abruptly changed their position and started investigating it.
SG published no specific facts about a single one of the sixteen gatherings. In this way, a crucial report has been strangled at birth simply due to a police service misunderstanding its own processes. Predictably, there are claims of conspiracy and corruption. In reality, this is not part of 'Operation Save Big Dog'. It is just a Dog's Dinner.
Articles are intended as an introduction to the topic and do not constitute legal advice.