Lawyers have questioned how publishing the findings of Sue Gray’s inquiry could prejudice the police investigation into allegations of lockdown-breaking parties in Downing Street.
Scotland Yard has asked for the Whitehall inquiry to only make “minimal reference” to the events it is investigating as it seeks to avoid any prejudice to its probe. But it insisted it has not asked senior civil servant Ms Gray to delay her report or place any further restrictions on other events.
The Metropolitan Police’s statement indicates that Ms Gray will either have to make significant changes to her report before publication or delay it until after the force’s inquiry concludes.
But some legal figures have questioned why publishing the report would prejudice the police investigation.
Nazir Afzal, a former chief Crown prosecutor for the North West, said on Twitter: “This is absolute nonsense from the Met Police. A purely factual report by Sue Gray cannot possibly prejudice a police investigation.
“They just have to follow the evidence, of which the report will be a part.”
Kate Macnab, criminal and investigations lawyer at Reeds Solicitors, agreed that the suggestion the findings of the inquiry could prejudice the police investigation was “nonsense”, adding: “The Metropolitan Police have an opportunity to rebuild public support in their ability to investigate impartially and independently and they should be using this as a springboard to rebuild that confidence.”
Human rights barrister Adam Wagner, who has spent the pandemic interpreting complex coronavirus laws and explaining them to the public on social media, said on Twitter: “I am not a criminal lawyer so perhaps I am missing something. How would a factual civil service report about events the police is investigating ‘prejudice’ their investigation?”
By disclosing the evidence that they will gather and thereby giving the potential defendants an opportunity to conceal or alter evidence.
— Nick Aldworth (@CTCommentator) January 28, 2022
But Nick Aldworth, a former Metropolitan Police chief superintendent and counter-terrorism national co-ordinator, said the report could prejudice the police investigation “by disclosing the evidence that they will gather and thereby giving the potential defendants an opportunity to conceal or alter evidence”.
Barrister Andrew Keogh, which leads the legal comment provided by CrimeLine, said the move seems “sensible”, adding: “Why would anyone wish to prejudice intended or likely criminal proceedings? Seems to me that Sue Gray would be acting in a grossly irresponsible manner to ignore the request.
“The report may well contain detail that could potentially advantage a suspect. One of the great advantages that police enjoy is control of disclosure during a police investigation. I can see why they would not wish to lose that.”
Publication of official reports and other inquiries can often be delayed until a police investigation and any subsequent court case or inquest is concluded, typically to avoid the risk of prejudicing a jury if a criminal trial was to take place.
But in this instance, if police investigate under the provisions of the coronavirus regulations then there would be little risk of prejudice as the penalty for breaching lockdown rules is a fixed-penalty notice and it is highly unlikely to result in a prosecution.
Some lawyers have questioned whether the incidents in Downing Street may be examples of malfeasance or misconduct in public office or neglect of duty.
If police consider such offences, that could lead to a prosecution on more serious charges which may result in a prison sentence.
There is also speculation over whether the probe could open the door to possible action for perverting the course of justice, if officers discover those involved lied or tried to conceal evidence.
But the PA news agency understands officers are looking into possible breaches of Covid rules that may warrant fixed penalty notices, with the Met’s concerns centring on the ability of officers to effectively investigate.