It is quite possible that Boris Johnson and others broke the law. It is quite possible they did not.
The principle of innocence until proved guilty is at the heart of British justice, and its corruption poisons the system.
When judging people to be criminals, justice and morality require considerable care to be taken. Has that care been sufficiently evident when the media, politicians, commentators, and the general public have been assessing the gatherings in Downing Street and wider Whitehall during the pandemic?
GATHERINGS IN WHITEHALL – WERE LAWS BROKEN?
For weeks, broadcasters, journalists, politicians, and others whose opinions have been given publicity (major influencers) have branded the gatherings as “parties”, “shindigs”, “shenanigans”, or “dos” and as illegal, assuming them to be so but rarely explaining why. For many, perhaps the objective is to get Boris Johnson removed as PM?
Take the Financial Times, perhaps normally reasonably balanced on most subjects and less prone to hyperbole. On 29 January, Robert Shrimsley wrote about the need to remove Boris Johnson as PM. For some people, it seems strangely disproportionate that gatherings of work colleagues, perhaps under extreme pressure and workload, whether social or work events, or to sing happy birthday even with cake, could bring down a properly democratically elected Government. However, the article states “This is not about parties or cakes but wanton breaches of swingeing laws inhibiting personal freedom imposed by the State and violations clear enough to merit police action”. By action, one supposes he means investigation. There is no mention of what laws are broken and how, or by whom. The fact of a police investigation does not mean the law is broken or that a punishment (the imposition of a fine) will follow. It may, but that is not the point. Innocence until proved guilty is fundamental to justice.
His article uses the word “wanton”, a big word judging the state of mind of the alleged criminals, without basis. Opinion is presented as fact, which is typical of what the major influencers have been doing for weeks now. It must be emphasised that it is possible that some people may be found in breach of Covid laws, but on the other hand they may not. The relevant Covid laws, which are not simple or clear, also changed over time (some 65 times in the year March 2020 to 2021). The crimes were primarily leaving home without a reasonable excuse, or certain gatherings in private homes or public places. But being not at home to be at work is an exemption. Gatherings outside private homes, to be illegal, generally had to be in non-exempt public places. Is Downing Street a public place? When does a workplace cease to be one?
The parliamentary Joint Committee on Human Rights in April 2021 reported on how unclear the Covid laws are, not straightforward or easily understood, and on how the police often misunderstood them, muddling law, advice and guidance. So much so that they recommended as described later that every fixed penalty notice issued be reviewed. In late January, Jonathan Sumption, ex Supreme Court judge and widely regarded as the leading lawyer of his generation, told a SKY news presenter that, because the application of these laws is so unclear, it is not necessarily the case that they were breached, nor is it clear by whom and when, whether wantonly or otherwise at Whitehall workplaces. He cited his suspicion that he himself may have broken them hundreds of times. In general, that lack of clarity made it hard for the police to enforce them. The SKY presenter, accepting the uncertainty of the breaches of law, invoked her belief that the “spirit” of the law had been broken, in her view much the same thing. But it is not the same thing at all, as this “spirit” is a completely fallacious invention. Others too, desperate to find crime, have invoked this mysterious “spirit”. That cannot be a basis for criminal findings and punishment: imagine being arrested for not breaking the law but its spirit which is written nowhere, so you cannot know it. If you could be punished for that, would that be British justice? This spirit is a fiction, misinformation, and perhaps a lie.
Maybe when people refer to the spirit they mean the non-legally enforceable Covid guidelines, an entirely different subject when accusing a person of being a criminal. Guidelines too may have been broken but that is not a police or court matter. Breach of guidelines for the public may be as important as breach of law when perpetrated by Government employees but it would be misinformation to conflate the law and guidelines.
IS BORIS JOHNSON A COVID CRIMINAL?
It has been stated by leaders of the Labour, Liberal Democrat and Scottish National Party, and perhaps some Conservative MPs, that Boris Johnson broke the Covid laws. BBC, SKY and other broadcasters’ journalists have been saying it for weeks. Some members of the public seem also to believe he is criminally guilty, perhaps the public having been seriously influenced by major influencers. Those major influencers also say that Boris Johnson lied to Parliament about the gatherings. That requires the PM to have believed they were not legal. If he considered gatherings of workers at their place of work were work related, and legal, would he be a liar? Is it the case that use of language such as “shindigs” is a deliberate attempt to create an impression of impropriety which seeks to persuade the public?
Consider the case of the Chief Executive of a major corporation at his head office employing hundreds of people. In an emergency requiring long hours and generating huge stress. Is it his job to know the detail of all employee related regulations and ensure compliance? Or might he expect a senior executive to look after the housekeeping while the CEO considered matters of greater moment? What investor would want a CEO to do that? Compare the Prime Minister, his investors who are the British public. Consider too, should it be relevant, the question whether CEOs who receive hundreds of emails a day actually read them all? Do a lot of senior people rely on their managers to fix the CEO’s attention on things that matter, not point to things lost in emails, perhaps sent to cover a back? When it comes to Covid law, and guidelines, and workplace located events, might a CEO regard morale boosting events, even including enjoyment and even alcohol, as necessary for the business to prosper; this would be especially so if that CEO embraces the common view that wellbeing and enjoyment of work by employees is critical to performance.
Could these ideas be applicable to workers at the heart of Government in the biggest crisis since the second World War?
Some questions worth asking might include:
In hospitals and workplaces around the UK during the pandemic, did people gather to sing happy birthday, or was there ever cake or other food? Is it not common in lots of offices for drinks and food, even alcohol on say Fridays, to be consumed by people in the same place, perhaps even laughing and talking about football or the like, or the weekend, that is non-work topics? Was the entire British public expected to sit in sack cloth and ashes because someone unconnected to them died that day, or was to be buried the next day? Workers in Whitehall are just members of the public. If a person attended a gathering during the pandemic at their place of work and believed it to be in accordance with the law, are they a criminal? Should they be prosecuted? Whatever a person’s view, it is surely reasonable for all to admit that there is possibly strong argument each way. Criminal liability is not a given regarding the gatherings.
IS IT NOT A PILLAR OF JUSTICE THAT A COURT DECIDES ON CRIME?
The Police are now investigating certain gatherings in Whitehall based on information in a report by Sue Gray, evidently a much-respected senior civil servant. Many commentators say it is up to the Police to decide on whether Covid laws were broken. Clearly it is not Sue Gray. But to say it is for the Police is somewhat misleading as explained below. Such statements are more of the same misinformation peddled around the whole subject. Do not the Courts decide who is guilty of crime in the UK? Although when it comes to gatherings major influencers seem to think it is them.
If the Police consider crimes have been committed, the Crown Prosecution Service normally decides whether to prosecute. A person found guilty in Court will get a criminal record. With Covid offences the Police are empowered to issue a fixed penalty notice which is a fine up to £10,000. There is no formal appeal right against an FPN but if it is not paid, the matter goes to Court which then decides guilt and punishment, if any. If an FPN is paid the crime does not go on the record. This allows people to pay, rather like a bribe perhaps, and so choose to avoid going to court and avoid the risk of a criminal record, and the complications such a record can bring to life and work. Taking such a financial hit, even if unjustified, could be very persuasive. However, the risk of injustice is palpable. Issuing an FPN fine is not like a parking or speeding fine, where the facts are so often black and white. There is a greyness around Covid law.
The Joint Committee on Human Rights also called for a review of all FPNs issued during the pandemic, because they were all regarded as unsafe, a significant number having been found in Court to have been wrongly issued. This illustrates the understandable lack of knowledge of Covid law, guidance and advice and the distinctions between them within the Police. Is it any wonder it is the police policy not to investigate alleged historic Covid law breaches? That is understandable as the purpose behind the law and so enforcing it was to prevent the spread of Covid: irrelevant a year or two later. When that purpose is not served, what is the point of punishment? For major influencers perhaps the prime motive behind wanting a Police investigation is to hasten a Boris Johnson departure through publicity, not justice or Covid prevention. Regarding the “gatherings”, it is hard to predict on the facts available publicly whether any justifiable FPNs will be issued, including as regards Boris Johnson. Finding him and others guilty of crime is an uncertain matter. The issue of non-criminal failure to follow guidelines is a separate and important issue, but there is considerable scope for subjective views and latitude on their application.
Many say that it does not matter what the Sue Gray report or the Police or the Courts find, as the court of public opinion has found Boris Johnson guilty and so trust has gone. But has it been undermined improperly? Does this perhaps illustrate the very abuse which is occurring? People cite previous allegations in the litany of his guilt around breaches of the Ministerial Code, but in no case has he been found guilty. More misinformation or not? That MPs and others bay for the PM’s head asserting he has broken the law while his guilt of so doing is unproven, with much doubt on the subject, makes such accusers wrongful judges. They are eroding the fundamental principle of criminal innocence until found guilty and so poisoning the well of justice which underpins society. If Boris Johnson and others are not found guilty of a crime, would it be right for the media to ask major influencers to apologise to the accused and to the British public for their mistakes?
Is it worrying that major influencers including some politicians now express outrage that the Sue Gray report may exclude key facts at the request of the police to avoid injustice in their investigations? Could it be that they are concerned that without such facts being disclosed now, they are hampered in their self-styled role as judge and jury on Covid crime?
While crimes may, or may not, have been committed through the gatherings, the moral and proper time to judge crime is when all the facts are known, the laws are properly analysed, and presented to a court which decides. Trial by media needs to stop, and perhaps the BBC, the protector of objectivity, could lead the way. And some politicians could respect the core principle underpinning British justice.
