With the dust settling on the Metropolitan police’s long investigation into Covid breaches inside Downing Street, one big question remains: how did Boris Johnson escape with just one fine? Legal experts say it defies logic – and to many voters, it defies common sense too. This is, however, a mystery that appears unlikely to be solved any time soon. It’s not that the PM and his wife got off scot-free. Johnson and Carrie did break Covid laws. Last month, they received fixed-penalty notices (FPNs) for attending the prime minister’s birthday celebration in June 2020, as did Rishi Sunak, the chancellor, who reportedly made just a fleeting appearance. But while Johnson is known to have been at up to five other events for which FPNs have been issued, and reportedly poured drinks at one of them, he has escaped further punishment. What appeared most anomalous, according to Adam Wagner, the Doughty Street Chambers barrister who is an expert on Covid rules, is how Johnson attended gatherings deemed to have breached the rules without himself being fined. “We still don’t know very much about how the regulations work, because the higher courts haven’t looked at this,” Wagner said. “But generally, the decision is difficult to understand. The way the regulations are drafted is that the gathering itself has to be reasonably necessary, and the reason why somebody participates is not really relevant.” To escape a fine, Wagner added, Johnson would have needed to provide a reasonable excuse: “But I don’t understand how you could ever reasonably attend an illegal gathering, unless you attended by accident, realised and left very quickly. I don’t see why, if the prime minister had a reasonable excuse for attending, the other people attending wouldn’t.” One possible escape would be if the police viewed events as more than one gathering – for example as reasonably necessary for work when Johnson was there, but descending into socialising after he left. However, Wagner noted, this would appear to be contradicted by reports such as Johnson pouring drinks. Another get-out raised by Johnson allies is the fact that Downing Street is both his workplace and home. However, a change to Covid regulation at the end of May 2020 specifically ended being in your own home as a potential loophole. Ultimately, without knowing what evidence the police received, it is impossible to be certain why Johnson was fined for the one event and not others. And given the nature of the Met’s inquiry, this evidence will not be aired in public, beyond whatever necessarily anonymised summary appears in the report of the senior official, Sue Gray, next week. It is one of the several curiosities of Partygate that it involved huge stakes, not least the political survival of a prime minister, while simultaneously being centred on what are, in strictly legal terms, relatively low-level offences. “Yes, this was people breaking rules they had made themselves, which is important,” one criminal lawyer noted, speaking anonymously. “But at that the same time, you can very easily be fined more for parking on a double yellow line.” The nature of the offences meant they fell into the system of FPNs, which are investigated and levied entirely by the police, with courts only becoming involved if the fine is challenged. Having been forced into an inquiry it had not wanted to undertake by the sheer volume of material gathered by Gray, the Met’s infrequent updates were parsimonious, even opaque, even by the standards of police investigations. While the force was at times criticised for its approach to openness, there is no obligation for someone to declare an FPN; and if they do not challenge it in court, there is no public record of one being received. The Met did have a significant amount of evidence to go through: the team of 12 detectives had access to 345 documents, among them witness statements, emails and door logs for one of the UK’s most secure addresses, as well as more than 500 photographs and CCTV images. However, no one suspected of wrongdoing was formally interviewed. Instead, police received 204 questionnaires filled out by people identified as connected to the gatherings. This was another complicating factor – some people would have been notably more open and voluble with their answers than others.
“If someone was sent one of those questionnaires and they went to me, I’d say: don’t answer it,” the criminal lawyer said. “You’ve got no obligation to fill it in. You’re not under arrest. You’ve not even been cautioned. If you tell the truth, you might be fined, and if you lie, you’re potentially committing another offence. So why risk it?” Overall, Wagner said, the lack of transparency from a police-only investigation was “unsatisfactory”. “The reality of it is that the Metropolitan police have decided there were at least eight illegal gatherings over the course of a year,” he said. “And the prime minister appears to have attended six of them. You think about how careful other workplaces were being, and the actual people who were writing the rules were treating them with a wanton disregard.”
A more legally comprehensible outcome, he said, would have been if police had fined Johnson just for the birthday party while decreeing that the only other illegal gatherings were three others he did not attend – a Christmas party in December 2020 and the two events on the same night in April last year, the night before Prince Philip’s funeral. “It’s right that they take a cautious approach. And if they had said the other gatherings were on the borderline, so we’re not going to act, I would have thought that was quite liberal of them, but it would have an internal logic,” Wagner said. “But they have given people criminal penalties for a series of illegal gatherings, just not the prime minister. I think he’s lucky to have got away with it.”