Campaigners are considering the possibility of bringing a private prosecution against government adviser Dominic Cummings

Campaigners are considering the possibility of bringing a private prosecution against government adviser Dominic Cummings over his controversial trip to the north east during lockdown. Private prosecution experts Rahman Ravelli outlines how events could unfold.

A campaign for a new investigation into government adviser Dominic Cummings’ alleged breaches of lockdown has said it will consider a private prosecution against him.

The campaign group, formed by lawyers with backing from some health workers and relatives of coronavirus victims, has called for a thorough investigation by a Metropolitan Police unit into Cummings’ trips to Durham and Barnard Castle during lockdown. Its legal team has said that bringing a private prosecution is an option if the Crown Prosecution Service (CPS) will not consider a public prosecution.

The campaign’s supporters argue that the focus has been so heavily centred on Durham that the Metropolitan Police is yet to examine properly the original alleged lockdown breach in London.

A three-day investigation by Durham police into Cummings found that he may have breached health protection regulations when he took a 52-mile round trip to the town of Barnard Castle, County Durham, with his wife and son. But it said Cummings’ 516-mile London to Durham round trip had not broken regulations and the force decided to take no further action.
As there does not appear to be a desire by the authorities to bring proceedings against Cummings, the possibility of a private prosecution has come into the spotlight.

The right to bring private prosecutions is preserved by section 6(1) of the Prosecution of Offences Act (POA) 1985. The same considerations must be applied by the private prosecutor as a public prosecutor when deciding whether charges should be brought. Under a two-stage test, consideration must be given to whether there is sufficient evidence to provide a realistic prospect of conviction and, if that is the case, a decision must then be made as to whether a prosecution is needed in the public interest.

Given that many of the facts have been in the court of public opinion for some time, should a private prosecution commence it will be interesting to see if the CPS exercises its powers under s6(2) POA 1985 to take over private prosecutions. Should those powers be exercised, the Director of Public Prosecution’s powers allow for the prosecution to be either continued or stopped.