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?
[PAUSE]
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.