R Martin Redston v Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Lady Justice Carr DBE |
| Judgment Date | 05 November 2020 |
| Neutral Citation | [2020] EWHC 2962 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2160/2020 |
| Date | 05 November 2020 |
[2020] EWHC 2962 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT (ADMINISTRATIVE COURT)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Carr DBE
and
Mr Justice Picken
Case No: CO/2160/2020
Michael Mansfield QC and Philip Rule (instructed by Hacket & Dabbs LLP) for the Claimant
Duncan Atkinson QC and Tom Williams (instructed by the Crown Prosecution Service) for the Defendant
Hearing date: 3 November 2020
Approved Judgment
Introduction
This is the judgment of the Court to which both members have contributed.
It concerns a renewed application for permission by a Renewal Notice dated 4 August 2020 following refusal of permission on paper by Swift J provided to the parties on 31 July 2020.
We announced our decision to refuse permission at the conclusion of the hearing on 3 November 2020, indicating that we would give our reasons for doing so in writing later. These are those reasons.
Facts in summary
The Claimant, Mr Martin Redston (‘Mr Redston’), seeks permission to challenge by way of judicial review the decision of the Defendant, the Director of Public Prosecutions (‘the DPP’), not to refer the case of Mr Dominic Cummings, Chief Adviser to the Prime Minister, to the police for investigation of a potential breach of Regulation 6, Health Protection (Coronavirus, Restrictions) (England) Regulations ( SI 2020/350) (the ‘Regulations’), and/or a potential offence of public nuisance, contrary to common law.
The context is well known. On 23 March 2020, the Prime Minister announced a national lockdown. The Regulations came into force three days later, at 1pm on 26 March 2020. These included Regulation 6, which stipulated in subsection (1) that “no person may leave the place where they are living without reasonable excuse”. Subsection (2), then, set out scenarios which would amount to a reasonable excuse.
On 22 May 2020 it was reported in the press that on 27 March 2020 Mr Cummings had made the journey from London to Durham and, furthermore, that, before travelling to Durham, he went to work at Downing Street after his wife had become ill with Covid-19 symptoms rather than isolating at home for 14 days. It was reported further that, whilst staying away from his home in London, on 12 April 2020, Mr Cummings also made a journey to Barnard Castle.
On 23 May 2020, the Attorney-General, Ms Suella Braverman, tweeted that “protecting one's family is what any good parent does” before going on to refer to a statement from 10 Downing Street as clarifying the situation and observing that “it is wholly inappropriate to politicise it”. The 10 Downing Street statement described Mr Cummings' actions as having been “in line with coronavirus guidelines”.
On 25 May 2020, Mr Cummings held a press conference in the Rose Garden at 10 Downing Street. He gave explanations as to why it was that he travelled from London to Durham, and subsequently, whilst at Durham, to Barnard Castle.
It is Mr Redston's position that the DPP ought, in the circumstances, to have referred the matter to the police in order for there be an investigation into Mr Cummings' movements.
This, Mr Redston suggests, should have been done notwithstanding that on 28 May 2020 the Durham Constabulary issued a press release in which it was stated:
“Durham Constabulary does not consider that by locating himself at his father's premises, Mr Cummings committed an offence contrary to Regulation 6 of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020. (We are concerned here with breaches of the Regulations, not the general Government guidance to ‘stay at home’.)
On 12 April 2020, Mr Cummings drove approximately 26 miles from his father's property to Barnard Castle with his wife and son. He stated on 25 May 2020 that the purpose of this drive was to test his resilience to drive to London the following day, including whether his eyesight was sufficiently recovered, his period of self-isolation having ended.
Durham Constabulary have examined the circumstances surrounding the journey to Barnard Castle (including ANPR, witness evidence and a review of Mr Cummings' press conference on 25 May 2020) and have concluded that there might have been a minor breach of the Regulations that would have warranted police intervention. Durham Constabulary view this as minor because there was no apparent breach of social distancing.”
On 3 June 2020, solicitors acting for Mr Redston, Hackett & Dabbs LLP, wrote to the DPP in these terms:
“We, along with leading and junior counsel, are instructed by Mr Martin Redston. As a resident of London Mr Redston has been subject to the restrictions imposed in order to do reduce the risk of the spread of the pandemic caused by the virus commonly referred to as ‘Covid-19’.
We write in relation to the actions of Dominic Cummings, the chief adviser 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 the breaks and stops on the way.
In the home, under strict guidance in the interests of public health, the person would self-isolate 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.”
The letter went on to refer to Mr Cummings having left work on 27 March and gone home to see his wife, who was exhibiting symptoms before returning to work and then driving to Durham, and to his subsequent visit to Barnard Castle.
The letter then continued as follows:
“We are concerned that no action has been taken in relation to the actions of this public figure. Due consideration or investigation of these issues is clearly in the public interest. Whilst we acknowledge that there is no obligation on a private prosecutor to notify the CPS, the DPP or any other state agency, that a private prosecution is contemplated or due to commence we are writing as a matter of courtesy to provide you with the opportunity to respond to this matter to notify us as to whether you are considering this matter, or intend to do so, or are pursuing a prosecution in this regard.
We would wish to highlight to you the potential that the absence of a thorough police investigation or state inquiry risks (a) 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); and (b) 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 needs of 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.”
The response to this letter came in the form of an email from the DPP's Private Secretary on 8 June 2020 acknowledging receipt and explaining that the matter “has now been passed to colleagues in our Special Crime Division, who will provide a response to you in due course”.
Hackett & Dabbs LLP replied the same day, as follows:
“We are unclear as to nature this response and are writing to you again in order to seek clarification thereof. Our letter sought a substantive response by 9 June as you will appreciate, and this is an acknowledgement only, received this afternoon.
Consequently we would be grateful for your urgent responses to the following question by 12 noon Tuesday, 9 June 2020.
Please 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, please indicate when this consideration commenced, and by when you are expecting to reach a decision. We would ask for an explanation as to why no decision has been reached to-date.”
On 9 June 2020, Hackett & Dabbs LLP sent the DPP a further letter with the heading “URGENT — LETTER BEFORE ACTION — JUDICIAL REVIEW”. The second paragraph stated:
“Having received no response to our letters by close of today, 9 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 proceeding should this matter not be capable of being resolved satisfactorily.”
Having then addressed matters required by the relevant Pre-Action Protocol, including setting out grounds for judicial review which at that stage included the allegation that the DPP had unreasonably or otherwise unlawfully failed “to inquire or investigate the actions of Dominic Cummings”, the letter ended:
“We look forward to your response by 6 PM on Thursday, 11 June 2020. We reserve the right to issue proceedings thereafter without recourse to you.”
On 10 June 2020, Mr Michael Gregory, Senior Specialist Prosecutor at the Special Crime and Counter Terrorism Division of the CPS, wrote to Hackett &...
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