27th May 2022
The response to yesterday’s post – offering an explanation as to why the current Prime Minister only received one fixed penalty notice over ‘Partygate’ – was rather overwhelming.
The post was linked to by both the Guardian and Guido Fawkes – which must be rare – and commended by a former (proper) Lord Chancellor and a former Treasury Solicitor (the government’s most senior legal official) – and the post had over 12,000 hits.
The thing is that I do not know – could not know – if that explanation were true.
The current Prime Minister is entitled to legal advice and the protection of legal privilege – and, in a way, it is not a bad thing for a Prime Minister to have access to competent legal advice.
(The problem, of course, is that ready access to competent legal advice when facing criminal sanctions is something which everyone should be entitled – and that entitlement is under constant threat by government cuts to Legal Aid.)
The only merit of my explanation was that it explained the facts as we understand them better than any other explanation, without resorting to a conspiracy theory.
In an interesting thread today, the journalist Peter Walker has set out some useful background which also supports my suggested explanation.
I was struck by acting Met chief Stephen House repeatedly stressing they only issued FPNs if certain it would stand up if challenged in court. If Johnson had expensive legal advice saying his presence at leaving drinks was necessary for work, then you can imagine the caution.
— Peter Walker (@peterwalker99) May 27, 2022
As ever, I'm not a lawyer, but it strikes me that Johnson would have had a lot more leeway for potentially making this sort of argument with regulations that were drafted quickly and hadn't been tested in a higher court (and barely in lower courts).
— Peter Walker (@peterwalker99) May 27, 2022
The decision to issue a notice is not a judicial decision – no judge or court is involved.
The decision is made by a police officer, who must reasonably believe that an offence was committed.
The safeguard against people having sanctions based on just police discretion is that an individual can refuse to pay the penalty and, as the dreadful phrase goes, have their day in court.
Payment of a penalty also does not, by itself, constitute an admission to a criminal offence such that would, like accepting a caution, give you a criminal record.
If the police officer does not reasonably believe that an offence was committed then no notice will be – or should be – issued.
The suggested explanation I set out yesterday may not be compel a court or convince a jury or a judge – but that was not the test.
The suggested explanation had to be enough for a police officer not to reasonably believe that an offence had been committed.
And which police officer would gainsay that a senior minister had to perform an, ahem, ‘essential function’ of leadership of thanking staff and making them feel appreciated?
It was not much of an excuse, but it was enough for the job that it needed to do, and it looks like it did it.
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But stepping back, there is a certain strangeness – if not idiocy – in investigating possible wrongdoing by questionnaire.
Especially if – as it seems – the questionnaires were not issued under caution (though I have not seen a copy of the actual questionnaires in question).
As any good regulatory lawyer would tell you – a regulator is only as good as the information to which it has access.
And so – as techies would say – Garbage In, Garbage Out (or GIGO).
The current Private Eye states that certain senior figures did not even return their questionnaires – or may have not completed all the answers.
From their perspective, that was prudent – even if maddeningly frustrating for the police and for those who wanted those who wanted the partying Downing Street staff and advisers to face sanctions.
One fears that senior figures – with access to competent legal advice – were advised not to complete or return the questionnaires, while more junior figures – not aware of their options and perhaps even trying to be helpful – basically wrote out their own fixed penalty notices.
If this is the case – and few will know for certain – then what was being actually sanctioned was not wrongdoing, but naivety.
And, if so, that would be one of many things which make ‘Partygate’ an unsatisfactory moment in our constitutional and political history.
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Lastly, on questionnaires. here are the wise words of one of the greatest jurists never to be appointed as a judge, E. L. Wisty:
“… they’re not very rigorous. They only ask one question. They say ‘Who are you?’, and I got seventy-five percent for that.”
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E L Wisty!
Wonderful.
These days surely the answer to any kind of questioning is
“No comment”!
We’ve all watched too many “fly on the wall” police documentaries😊
What would the Met have done with questionnaires that had that as every answer?
Puts me in mind of the “entirely a matter for you” judge sketch, which ends: “you are now to retire – as indeed should I – you are now to retire, carefully to consider your verdict of “Not Guilty”.”
This link worked this morning:-
https://duckduckgo.com/?t=ffab&q=peter+cook+summing+up+jeremy+thorpe+trial&iax=videos&ia=videos&iai=https%3A%2F%2Fwww.youtube.com%2Fwatch%3Fv%3D6xi-agPf95M
A question .Given senior civil servants who sent e mails inviting people to parties during lockdown and telling them to bring a bottle haven’t had so much as a PCN ,could those people fined huge ,life – damaging sums for organising much smaller one-off gatherings use this as grounds for appeal ?
Persuasive as ever, & makes a particularly persuasive pair with yesterday’s. This is not my reason for replying, however, which is surprise & delight to see as your conclusion a quotation from the works of Wisty. It is truly heartwarming to see that the great man is still remembered, especially for his remarks on the high bar set for entry to the judiciary as against certain other occupations. I salute a fellow admirer.
“…while more junior figures – not aware of their options and perhaps even trying to be helpful – basically wrote out their own fixed penalty notices…”
I’m not sure I buy ( accept) this line of argument albeit that some uber naïve junior party/pastry goers might have acted on their own volition.
The group or cohort of people employed by the PM’s department and/or Cabinet Office aren’t your regular office punters. They are, in my experience quite bright, have a good education, some are fast track civil servants whilst others have been selected on secondment from the ‘cream of industry’.
Many might not have taken formal legal advice, but I’m also pretty confident that within ( many of) their social circle, their will be lawyer’s and barrister’s willing to ‘tip the wink’ as to how to respond to a questionnaire – the fact that well over 50 responded bodes well towards their decency as political servants.
Mates who are junior lawyers – but not competent in the relevant practice areas – are not good sources of legal advice.
Agreed but these ‘mates’ don’t necessarily have to be junior either – this extended network of ‘support’ includes other seasoned relevant professionals inc banker’s, accountants.
Suggesting this:-
https://www.youtube.com/watch?v=d-7o9xYp7eE
in response to your post is a bit of a stretch… but if you have 46 minutes it’s worth every moment of your time. A US Law Professor (Regent University, Virginia) invites a Police Detective to meet his students: the professor begins with a 20-odd minute whirlwind tour of why one should remain silent and never talk to the police without their lawyer. Then the police detective takes over the presentation and confirms everything the professor says, giving real-world examples.
The video relates to US law and concerns spoken interviews, but I believe the principles translate to this situation.
Cleaners, custodians, junior clerks. All work at No 10, and are unlikely to have the means to buy legal advice or have legal friends able to give advice, reliable or otherwise.
“Cleaners, custodians, junior clerks ..”
I wasn’t aware that cleaners or custodians or perhaps even junior clerks had been issued with questionnaires let alone PCN’s.
Rather, from the Gray report it appears that cleaners & custodians were more casualties of the partygate culture. Whilst rudeness and surliness cannot or should not be tolerated it isn’t obvious that being rude or surly of not even being polite would warrant a PCN.
Nitpicking! My point is that there are lots of junior staff at No 10 who can’t afford good legal advice and are unlikely to have lawyer friends to provide it for nothing.
I have worked in the civil service with No 10 staff, both senior and junior.
I look forward to your commentary on Johnson’s amendments to the ministerial code post facto. Hard to conceive of a more cynically expedient move which quite blatantly indicates culpability rather than innocence. A for amorality rather than A for Alexander.
DAG wrote:
> The safeguard against people having sanctions based on just
> police discretion is that an individual can refuse to pay
> the penalty and, as the dreadful phrase goes, have their
> day in court.
A safeguard which these nurses, exhibiting leadership at a
lawful protest, wisely proceeded to make use of. It seems
that just the lawyering up phase was sufficient to produce
a satisfactory outcome.
https://www.theguardian.com/uk-news/2022/may/25/nurse-fined-10k-over-nhs-pay-protest-in-lockdown-wins-compensation
I find the contrast in the approach of the police to this
protest gathering and Partygate quite remarkable.
Perhaps the investigation of Partygate should have been
delegated to the Greater Manchester Police.
It’s so obvious now what’s missing from Parliament, nude women dancing. Oh I see, they were at the parties.
Another interesting post, but it still doesn’t address what strikes this non-legal person as an obvious objection to the “essential management function” defence: surely maintaining safety and compliance with the law are more essential management functions that boosting morale? Witnesses attest that Johnson was present when safety and compliance were manifestly being at best compromised and at worst straightforwardly flouted, and that he did nothing to censure or deter the transgressors. Surely his primary responsibility as a leader, both morally and legally, was to use his positional authority and, if necessary, his power, to make it much, much harder for those in more junior positions to risk their health and break the law?
I trust Guido and the Guardian are paid subscribers?
What I want to know us who pays for these government lawyers – is it Johnson himself ( unlikely) or us patsy taxpayers as usual?
I am afraid that I do not think it a bad thing for any Prime Minister to have access to competent legal advice.