We asked lawyers about the Met’s intervention in the Sue Gray report
The Metropolitan Police has asked for Sue Gray to make “minimal reference” to the events they are investigating in her report on Boris Johnson and the alleged Downing Street parties.
by: Liam Geraghty, Evie Breese
28 Jan 2022
Prime minister Boris Johnson, pictured at a cabinet meeting in early January has said he will wait until Sue Gray’s report has been published before commenting on his future. Image: Simon Dawson / No 10 Downing Street
The Metropolitan Police has asked Sue Gray to make “minimal reference” to the alleged Downing Street parties they are investigating as she prepares to release her bombshell report into whether Boris Johnson broke Covid restrictions.
Scotland Yard released a statement on Friday morning to confirm police asked the civil servant’s report to “avoid any prejudice to our investigation”, days after she was ready to release her report to the public.
The intervention has caused uproar across the media — both mainstream and social — as accusations fly about why Gray may be taking so long to publish her long-awaited investigation.
As far as we know, Gray’s report could not cause “prejudice” under the Contempt of Court Act because the criminal case is not “active”. A case only becomes active when an arrest is made, or a warrant is issued for an arrest.
But what do lawyers think?
David Greene, a senior partner at law firm Edwin Coe and former president of The Law Society, told The Big Issue that while it was unclear whether the Met’s investigation would result in a jury trial, the police must be wary of the possibility.
“The problem that arises in the police investigation is that it’s important that it’s not influenced by a third party. The police must come to it with a clean slate and so must the juries,” said Greene.
“Anyone who was prosecuted, if there were findings in the Gray report, would say the jury members can’t be neutral because they will have been influenced by all the publicity in relation to this particular event.
“It isn’t clear whether this investigation will result in a jury trial but the police must plan on the basis that it will. At the end of the day the police and the CPS will have to decide: is this a prosecution which will have a fair chase of succeeding in achieving a conviction?
“The usual rule is safety first, i.e if you’re in doubt, get it out.”
Conservative MPs have spent weeks defending a string of allegations that the prime minister and other senior members of the government had held parties in Westminster throughout successive lockdowns, when such gatherings were illegal.
Met Commissioner Cressida Dick announced that the force would investigate the allegations on Tuesday after receiving evidence shared by Gray. The force had previously said it would not investigate due to “a lack of evidence”.
A Scotland Yard spokesperson said on Friday: “For the events the Met is investigating, we asked for minimal reference to be made in the Cabinet Office report.
“The Met did not ask for any limitations on other events in the report, or for the report to be delayed, but we have had ongoing contact with the Cabinet Office, including on the content of the report, to avoid any prejudice to our investigation.”
The lawyers were split on whether Gray’s report would impact the police’s investigation.
Nazir Afzal, a former chief prosecutor with the Crown Prosecution Service, has called the Met’s request that the Sue Gray report be stripped down “absolute nonsense.”
“What we’re dealing with here is a straightforward fact-finding report, which will then lead the police to pursue the investigation,” he told The Big Issue.
“There have been so many occasions going back decades where newspapers have been able to carry out very detailed investigations and at the same time, the police have carried out their inquiry. The two are completely separate. The police inquiry doesn’t have to be prejudiced by anything, we’re not at the stage where there would be a legal barrier,” he explained.
Afzal also highlighted that, importantly, the Met have “only made a request” for details to be left out, rather than a mandate.
However, “unfortunately what that has led to is a perception, which we have been trying to get away from, that the police are simply doing the government’s bidding. And public confidence has already been shaken. This thing isn’t about parties, it’s about honesty and integrity.
“They have no legal powers to get this document redacted, so they’re using the leverage of a request… A request has no legal force, so Sue Gray doesn’t have to comply. She could say ‘thank you very much for your request but the public interest requires us to release it in its entirety.’”
Adam Wagner, a human rights barrister, questioned whether any offences uncovered in Sue Gray’s would be serious enough to face a jury trial. Offences for breaching Covid-19 restrictions are treated as summary offences and would most likely not be heard in front of a jury at a trial.
He tweeted: “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?
He added: “I suppose the police might argue that there is a possibility down the line of a jury trial e.g. if there are misconduct in public office charges, but it still seems odd to say that Sue Gray’s findings would at this very early stage ‘prejudice’ anything.
“And don’t forget that most if not all of the offences at issue here (the coronavirus regulations offences) are “summary only” offences, so no possibility of a jury trial. So why suppress parts of this report which itself will only refers to those issues?”
The prime minister has previously resisted widespread calls to resign and has repeated that he will wait to see the outcome of Sue Gray’s report before commenting on his future.
But the Met’s warning has sparked accusations that Gray’s report will be watered down if she is forced to remove and redact damning details.
Westminster SNP leader Ian Blackford said there must be “maximum transparency” following the Met’s statement. He said: “The Sue Gray report must be published in full and undoctored without further delay.
“This UK government farce has gone on long enough. People are understandably concerned that this increasingly looks like a cover-up.”
Another possibility could be that criminal proceedings are already active and that would limit what Gray can report.
Barrister Andrew Keogh said: “It is likely to be more of a request by The Met as opposed to a reminder of s 1 Contempt of Court Act 1981. But it seems sensible, 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.”
But whether the Met’s request to make “minimal reference” to any events they are investigating, any redacted information is likely to trigger talk of a cover-up, especially as there is no indication of how long a criminal investigation could take.
Criminal and regulatory lawyer Greg Foxsmith said: “Cynics, many lawyers among them, will say it’s very convenient for the government that the more interesting parts of the report may be redacted due to an investigation by the police force that previously showed no interest in investigating. However, it is possible that the scope of the investigation is wider than just Boris’ boozy parties, and the Met do not want those potentially implicated “tipped off.”