This has been the question reverberating around Twitter all day. It’s the first question I asked myself when I saw the story, and was a question that appeared several hundred times in my mentions from people understandably confused by the Met’s curious statement, released this morning:

“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.”

I too was confused. There appeared to me no good reason at all as to why the police should be concerned with an internal civil service report which, on its own terms, is not offering determinations of criminal guilt, merely a distillation of facts.

And I said as much. If the investigation is solely focused on breaches of Covid regulations, then these cannot result in a Crown Court trial – indeed, they are likely to result in either no action at all or a modest fixed penalty notice – and so prejudicing a potential jury is not a consideration. It is possible, given what we know, that the investigation might expand onto much more serious criminal offences, such as misconduct in public office or doing acts tending and intended to pervert the course of justice, which could result in a jury trial many moons from now (most cases being investigated now can expect a Crown Court trial in 2024 or 2025). However, even so, contempt of court laws, designed to protect juries from prejudicial material, do not apply at this stage of a police investigation, and so there is no legal bar at this stage to publication of what might otherwise be prejudicial information.

So what is the problem?

The answer – and I’m grateful to the wisdom of, among others, criminal legal kingpin Andrew Keogh – may not be immediately apparent to many (although it should have been to me). But it is important.

With my barrister’s wig on, I was focusing on future court proceedings. But the real potential prejudice relates to the police investigation. Which, in fairness to the Met, is what their statement said.

If you haven’t been involved in, or subject to, a police investigation, this sort of thing is probably not obvious. But once you pause to think it through, it makes sense. A key part of an investigation, especially when the police are looking at events that included a number of potential witnesses and number of potential suspects, includes obtaining accounts from those people. For witnesses, the police would normally take a witness statement, signed and dated by the witness to confirm its truth and accuracy. Suspects, by contrast, will be interviewed under caution, with the right to be legally represented.

There are similarities in the processes. For one, the police want to obtain an account from the person which is, as far as possible, free from the influence of what they may have been told by other people. If you witnessed a group of people having a drink in a garden, your recollection as to who was there and what was said – especially when asked a year or two after the event – may be influenced, even inadvertently, by what you have been told by other people. Memory is easily corruptible. The police want to guard against this.

But with a suspect, there is an even greater reason for controlling the flow of information. When the police interview a suspect, they provide ‘pre-interview disclosure’ – a summary of what the police want to ask about. Drafting this disclosure is something of an art. You want to give the interviewee fair notice so that they can give you their best honest answers, but you also do not want to hand guilty people the chance to construct an edifice of lies around your entire case. So you will hold certain information back, to see if the interviewee traps themselves in a provable lie, or says something that contradicts what another witness or suspect says. Because if the case is subsequently prosecuted, what a suspect says in interview is admissible evidence against them. And if they have lied in interview, it can potentially have a bearing on their credibility.

Think of Ted Hastings in Line of Duty gently handing his bent interviewees just enough rope. Or, to give a hypothetical example:

Q: What can you tell us about the alleged party on [DATE]?

A: Nothing at all, old bean. It’s absolute rhubarb! I wasn’t even told!

Q: Nobody told you anything about a party?

A: Piffle and balderdash! Nothing at all. You can check my phone and my emails!

Q: You had your phone on you all that day, did you?

A: Absolutely.

Q: Nobody else used it?

A: Of course not!

Q: We have analysed your phone, and your emails. And they’re clean. But we’d like to ask you about this. [PRESENTS DOCUMENT]

A: Cripes! What is this?

Q: These are messages we recovered from the mobile phone of X. They were deleted from your phone, it seems. And would you agree that these show you in detailed conversation about the party? Down to you even demanding a particular wine?


A: No comment.

Contrast to the position where the suspect knows in advance that X has potentially incriminating messages, and has the opportunity to either invent a pre-emptive lie (“I lent my phone to somebody else that day”) or to speak to X to ensure that those messages are accidentally irrecoverably deleted.

In other words, the absolute last thing you would want, as an investigator, is for a group of powerful, organised suspects to be presented with a summary of everything the police know, and to be afforded an opportunity, before being interviewed, to concoct a false exculpatory account, or to destroy evidence that they know has not yet come to light, or to have a gentle word with witnesses who have not yet spoken to the investigators.

Sue Gray’s report, if it offers summaries of what witnesses or suspects have said about events currently being investigated by the Met, would potentially be precisely such a document. It would offer a cheat sheet for any guilty party (no pun intended) wanting to steal a march on the police investigation.

This may be why the Met are so anxious that the report omits details relating to the parties currently under investigation.

Now none of that explains or justifies the conduct of the Metropolitan Police over the past months. Leadership has been headless. Conflicting messages – from the absurd “we don’t investigate retrospective crimes”, to the “wait for Sue Gray”, to the “stop Sue Gray publishing the juicy stuff” – have undermined public confidence, perhaps beyond repair. This entire fiasco could have been avoided had the Met, when first presented with evidence of consistent lawbreaking at the heart of government, immediately announced an investigation, rather than being dragged to that position by a combination of public pressure and an apparent fear of the leadership being even further undermined by critical findings once Sue Gray’s report was imminent.

The Met’s record on this investigation does not command faith. Its historic record has earned it little credit. And there is no doubt that the timings of its repeated vacillations have afforded political cover to a Prime Minister who, whatever the outcome of the criminal investigation, has evidently repeatedly breached his own guidance and lied to Parliament about it.

But a political ‘stitch-up’? It’s too early for such accusations to be sensibly levelled. As things stand, there are potentially valid reasons for the Met’s stance. The provable charge against the Met is unforgivable incompetence at the highest level. We’ll have to await the outcome of their investigation, details of precisely what Met officers knew at the time about the alleged offending, and the transparency of the Met’s ultimate decision-making, before deciding whether Hanlon’s Razor needs snapping in half.

thesecretbarrister Lawsplaining, Politics , ,

24 Replies

  1. Thank you for this review. If the answer wasn’t immediately obvious to you, it certainly wasn’t to laypeople like myself! Of course, like most others I had gone for the conspiracy theory. But as you say, the way in which this has been handled has created an atmosphere in which trust has been lost, and where repeated lies make it natural to doubt motives. In the longer term that is more damaging than any individual gathering.

  2. In these febrile times uour explanation is valuable in retaining a cognisant conversation. Thanks

  3. Presumably this “reason for controlling the flow of information” only works if the relevant parts of the report not only remain unpublished but are also withheld from the Prime Minister and are not circulated within government (since all the hypothetical potential suspects are ministers or government officials).

    Do we have any indication whether that is happening?

  4. Thak you as ever for a measured level headed and conspiracy free analysis

  5. great insight, too bad the general public will not (want to) read it, it makes too much sense.

  6. Thanks – that’s really helpful and puts things into some perspective. Truth will out I trust – or at least hope..

  7. Yup brilliant piece of work. Even I can see that there is justification not to publish the whole rep at this point. Also 100% with your conclusions. Could there not be a “MUST BE CONCLUDED” end date on investigation. Imo two weeks should be ample time given how quickly Sue got it done.

  8. This rationale is not that convincing. The police are trying to establish facts, not catch out liars (except to establish facts). If the lies can’t be told on the first place because the facts are already established then it should simplify and speed up the investigation. If there is value in witnesses/suspects not knowing in detail what the investigator knows, then Gray can withhold witness testimony, phone records, pictures etc. In any event, the issues are not that complicated… Was the event within the law at the time or not? Who was involved?

  9. The problem is, though, we know that the unexpurgated Gray Report had spent the last few days being thoroughly scrutinised by the Cabinet Office – the very people who are likely to be on the IUC list for authorising these parties – they’ve already ‘marked their own homework’ off the cheat sheet.

    I mean, is it realistic to assume that someone like Reynolds hasn’t seen the report?

  10. I agree that a lot of the suspicion and/ or anger about the Met’s request relates to their apparent extreme reluctance to treat the Prime Minister and his entourage in the same way they have been dealing with ordinary members of the public. It is easy to see why people would suspect that what sounds suspiciously like a complete volte-face is merely another excuse.
    However, I do not follow your reasoning about publishing the report in full giving a crib sheet to the potentially guilty. As I understand it, many of those that the police should be talking to will have access to the report (or already have access to it) anyway, whether or not it is made public at this stage. And if some are able to see it, they can very easily coach those who are not given sight of it, but who might know where some of the bodies are buried.

  11. Thank you, as ever, for providing clear rationale for what, on the face of it, is a very troubling intervention by the Met Police. Assuming this is indeed the concern they have then I do, however, see a significant flaw. Regardless, of what is published of the Gray Report, there will be one presumptive Person of Interest who will get to see the whole thing pre-publication and that is the Prime Minister. This will put him as a considerable advantage compared to other Persons of Interest and witnesses if he were minded to cast doubt on his own level of culpability in whatever events the police are focusing on in their investigation.

  12. “The provable charge against the Met is unforgivable incompetence at the highest level. ”

    This is meant to be reassuring, and to keep the Commissioner in her job? I’d almost prefer a conspiracy, as that would at least suggest that the affair is being managed by someone with some sort of intelligence!

  13. I think it was Graham Norton who said “If only there had been a policeman nearby to make sure nobody broke the law” and then cut to a shot of No 10’s front door with the requisite policeman, I remember walking up Downing Street (Wilson or Heath era) and the only thing looking after the PM (a role once respected) was one unarmed PC and a door that you can only open from the inside.

  14. This seems reasonable until you realise that the chief suspect Johnson has more than likely already seen the full report. It is unlikely Sue Grey, who works for Johnson and was reporting to him could withhold it from him.

  15. Read with interested, one of which is vested as I am serving police officer who watches the activities of the Met with interest.
    I can imagine the unfolding collapse of the big top around Westminster has caused those officers making the decisions at Vicotria a progressive and worsening headache.
    As the revelations have grown, obviously orchestrated by a careful drip feed to the press, the scandal had accelerated as those with an axe to gring become emboldened by fresh revelations, and release their own information.
    Knowing a little of how these officers operate, and lets not also forget they are for the most part political appointments, certainly at the top, its perhaps not a surprise that the message from the Met has changed.
    Initially they would understandably have wanted nothing to do with taking statements and conducting interviews in No 10. It appears to be a nest of vipers, and its also obvious lying is an occupational necessity. Now I know they are the police and they will routinely be involved in far worse, but can you imagine as a police officer in that environment trying to get to the truth? And for what, as you say a paltry fixed penalty, or a paltry party ticket and a 10k fine? I know its not a paltry sum, but it is to them. In fact it would probably be paid by the tax payer!
    In short it will be a massivley complex resource heavy investigation with political interferrance throughout, and to what end? I dont deny its absolutley in the public interest. The question for me is does that interest outweigh the diversion of resources from other investigations for the subsequent allegations that you have been political in carrying it out? And that will happen whatever the investigations conclusion. Its a tricky one, and one thats got trickier. A better strategy would have been to await the report and then make a statement and a decision around investigating, using the whole report as a guide?
    I do love the notion that the main players (the person sitting across from Supt Hastings) will not have seen the whole unredacted Sue Gray report prior to interview. If thats the reason thr Met have asked for certain restrictions, then I am surprised. I would also be surprised if the Mets statement isnt based on their own in house legal teams advice.

  16. I wholeheartedly lament the cowardice of the Met Police to investigate what was actually taking place, right under the Met’s own nose. Surely, those officers guarding 10 Downing Street, were fully aware of who was present and when? How much time does it take to interview said officers for their recollection of events? I am pretty sure that a rattling suitcase stuffed with alcohol, is exactly the type of thing that would presumably ‘NOT GO’ unnoticed by the officers, nor would I expect that the amount of noise coming from the interior, or the garden of Downing Street, could be missed, unless of course the officers all suffer from hearing impairments? Individuals stumbling out whilst under the influence, is another matter that the officers will surely have noticed, unless of course, they also happen to suffer from a visual impairment as well? It is to the shame of the Met, and particularly Cressida Dick, that this omnishambles of events required the public’s outrage and anger to stir a change of heart. For society to submit to laws made, and governance imposed, everyone must be treated equally under the law, without fear or favour, affection or ill will. Cressida Dick appears to have misplaced her own understanding of the very laws that she is supposed to uphold and protect, and therefore should resign her current post. Meanwhile, placing a redacted version of Sue Grey’s report into the public domain, will only add fuel to the bonfire already licking at the feet of Boris Johnson’s premiership. Johnson may limp on as PM for a short while yet, but the ghosts of those laid to rest, without the presence of their loved ones farewells during this pandemic, will rise to fan the flames of Boris Johnson’s self inflicted Bonfire of the Vanities.

  17. Thank you for taking the time to write this. I found it enlightening and it’s good to see, amidst all the “noise”, that there may be a valid reason for the Met’s action. Although it in no way absolves them for their inaction in the first place.

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