Law and Lawyers Blog Looks At The “Cummings Affair” From A Purely Legal Perspective

Here in Australia, thankfully we are quite divorced from Mr Cummings and his antics because we know if we were in the UK our blood would be boiling.

We congratulate Law & Lawyers for their dispassionate look….

A look at the Cummings story – 2

Barnard Castle

This previous post looked at the Dominic Cummings situation on the basis of what was in the public domain on the morning of 25 May.  The post looked at the law and the guidance as they stood in late March and early April when Mr Cummings, together with his wife and son, travelled from their London home to his father’s farm in County Durham.

The question in law was whether, at the time he left the London home, Mr Cummings had a reasonable excuse to do so.

The guidance required people to stay at home if anyone in the household had symptoms of coronavirus but, if living with children, the guidance added that they had to do their best to follow the guidance.

Statement 25 May:

On the afternoon of 25 May, at the request of the Prime Minister, Mr Cummings
made a statement from the garden of  No.10 Downing Street and also answered questions put by representatives of the media. The event may be viewed at Sky News 25 May. or at BBC News 26 May. Mr Cummings emphasised that he was explaining his own actions and thinking and was not speaking for the government or the Prime Minister.

Key points in the statement appear to be:

Friday 27 March – Mrs Cummings was taken ill – (she had vomited and felt she might pass out) – and Mr Cummings left work to see her at home where she was with their 4-year old child. Mrs Cummings improved and Mr Cummings returned to work.  That evening he discussed the situation with his wife and they decided to drive to County Durham.  They arrived at his father’s farm around midnight. He said that he did not stop on the way.

Mr Cummings explained that he had been working near to others who had developed coronavirus synptoms and he thought that there was a “distinct probability” that he might have contracted the disease.

His reason for leaving the London home was that there was nobody in London they could reasonably ask to mind the child  and expose themselves to Covid if he and his wife became unable to do so. Nieces (aged 17 and 20) in County Durham had offered to care for the child if necessary.

Discussions were on-going within government about testing of staff for Covid. It was not available to Advisers on 27 March but there was a possibility that it might be introduced. (Mr Cummings said that it was not introduced and that he had not been tested for Covid),

Mr Cummings also referred to media reports which had created a “bad atmosphere” around his home. The media reports included stories that he had opposed the lockdown (he said he had not) and that he did not care about the deaths caused by Covid (he said that was untrue). Mr Cummings said that he had warned of the dangers of pandemics and the need for planning to handle them.

Pictures of his London home had been shown on television, threats had been shouted outside his home, and posts on social media had encouraged attacks. He worried for the safety of his wife and child if he was out at work.

In these circumstances they thought it best to drive the 270 miles (approx) to County Durham and to stay in an isolated cottage on his father’s farm.

On Saturday 28th March, both he and his wife were ill. Later, Mrs Cummings’ health improved but he got worse.

On Thursday 2 April, the child was ill (sickness and fever) and was taken by ambulance to hospital. Mrs Cummings went with the child.

On 3 April, the child was fit to be discharged from hospital and return to the farm and so Mr Cummings drove to the hospital to pick him up. He made no contact with anyone else. The child did not have coronavirus. No taxis were available.

By 11 April, he felt exhausted but his health was improving and he sought medical advice about returning to work. He was told that it was safe to return and seek childcare. (Mr Cummings did not indicate whether the medical advice related in any way to eyesight).

On 12 April (Easter Sunday) – Mr Cummings said that he drove (with his wife and child). This was so that he could test whether he was fit enough to drive back to London. Mrs Cummings had been worried particularly because his eyesight seemed to have been affected by the disease. They drove for about half an hour and ended up at the outskirts of the town of Barnard Castle. They did not visit the actual castle and did not walk around the town but they parked near a river. Whilst there, he felt a bit sick but improved and they returned to the farm with a stop on the way back because the child needed a toilet stop.

On 13 April, he continued to improve and they returned to London that evening. He returned to work on 14 April.

Mr Cummings denied that he had made any further visits to the north-east and, in particular, denied that he was there on 19 April. He said that it could be proved that he was in London on that date.

Mr Cummings declined to make any apology for what he had done but he recognised the difficulties that many others had endured in the lockdown. He claimed to have acted reasonably and legally.

Leaving London:

The Regulations required a reasonable excuse to leave the London home.  Mr Cummings explained his position – his own fear that he might have the disease, his wife being ill on 27 March, that there was nobody in London at that time who could reasonably be asked to care for the child, the offer from his nieces to do so.  He described the threats and the atmosphere around his home.

The question for a court would be whether that amounted to a reasonable excuse to leave the London home on 27 March.  The test is an objective one. It is not what Mr Cummings thought to be reasonable. The court would consider the resources and support available in London to the family. It would also consider whether the Police or security had been contacted about the threats and, if so, what the response had been.

The guidance at the time was clear in requiring people to stay at home if someone in the household was infected. The account given by Mr Cummings indicates that it was Mrs Cummings who first showed symptoms. The guidance therefore was that he should stay at home for 14 days. However, the guidance also included the section “If you are living with children.” This recognised that adhering to all the measures may not be possible but also stated that it is important that you do your best to follow this guidance.

Barnard Castle:

Mr Cummings, on his own account, drove on 12 April and got to Barnard Castle. A question arises as to whether there was a “reasonable excuse” to leave the farm where Mr Cummings was now living.  At the time there were concerns within the family about his fitness to drive and his eyesight. They wanted to see if he was fit to drive back to London and so, on 12 April, drove and got to Barnard Castle. This does not appear to fit within any of the reasonable excuses listed in Regulaton 6 though that list is not exhaustive and so other excuses can be raised. For my part, I do not think there was a reasonable excuse here. You will no doubt form your own view.

12 April was past the 14 days isolation period required by the guidance applicable to those who had symptoms. (They arrived at the farm on 27 March. By 11 April, 14 clear days had passed).

Covid-19: guidance for households with possible coronavirus infection.

Media:

It may be that the matter will disappear on the basis of “a week is a long time in politics” (Harold Wilson) but public anger at this matter has been considerable and, at the time of writing, one Minister has resigned from government (Mr Douglas Ross MP – who was Under-Secretary of State for Scotland.

Many families have endured true hardship during the lockdown including being unable to say a last goodbye to a dying relative or to attend a funeral. Others observed the “Stay at Home” guidance and did not travel to see relatives. To say the least, it has been a traumatic time for many.

The Cummings story has also been a huge diversion from matters that ought to have received their own prominence such as the Sunday Times article-

24 May – The Times – Three weeks of dither and delay on coronavirus that cost thousands of British lives

and other matters such as the deaths per million in the UK being among the highest in the world at 543.76 on 26 May – See Our World in Data – and the on-going problems with testing and tracing. Then there are the concerns about the impact of the return (for many) to work from 11 May and the plans to reopen schools and shops in June.

Those are stories raising serious questions about the government’s response to coronavirus. One day those questions must be answered and the questions about Mr Cummings’ and his trip to the north-east are unlikely to disappear entirely.