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12 June 2020updated 25 Jul 2021 10:48am

Members of the public are trying to prosecute Dominic Cummings – could it work?

Private prosecutions are rare, but citizens who feel “powerless” want to hold Boris Johnson’s adviser to account.

By Anoosh Chakelian

Members of the public are launching a bid to prosecute Dominic Cummings for breaking lockdown law. The group, which includes doctors, nurses, scientists, Covid-19 survivors and families of Covid-19 victims, is crowdfunding for a private prosecution of Boris Johnson’s key adviser after he travelled from London to stay in Durham, and drove to the tourist site of Barnard Castle in April.

Before building a private prosecution case, the group plans to push Durham Constabulary to reopen its investigation, the Metropolitan Police to investigate Cummings’ actions in London and the Crown Prosecution Service to consider a public prosecution if the police findings support one.

If all these routes, which they estimate require around £30,000 of crowdfunding, fail, then a private prosecution will be attempted as a last resort.

The government has excused Cummings’ decisions and Durham police found his actions might merely amount to a “minor breach” of lockdown rules. So why pursue this action?

“I have been feeling absolutely powerless and helpless,” says a 57-year-old retired healthcare professional from Dumfries and Galloway, who backs the citizens’ prosecution.

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Appalled by the government’s apparent disregard for the “sacrifices” made by the rest of the population, she describes how both her children have lost their jobs and her fear she may not be able to hold her grandchild, due in October.

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“People have sacrificed so much to stand by these rules, and Cummings is the architect of all of it,” she says. “Watching that story he told in his statement – my mouth was open.”

As a former health worker, she was also astonished at Cummings’ admission to both he and his wife travelling to hospital in Durham – when they were supposed to be isolating – rather than asking a family member to take their son instead.

“I’ve worked in hospitals for many years; they bend over backwards to facilitate family circumstances,” she says. “Especially if it means avoiding contaminating the hospital.”

Now she fears the Cummings revelations have emboldened visitors to travel to their holiday homes in her area, potentially bringing and spreading coronavirus. She wrote to her local MP, the Secretary of State for Scotland Alister Jack, hoping he would stand up for “the people he’s supposed to represent”, but found his response “meaningless and patronising”.

So she turned to holding Cummings to account via private prosecution. “This is all people have got left,” she tells me. “I’m not hopeful that it will change anything but I wanted to lend my voice to it.”

Another petitioner, Lisa Green, 49, a business manager from West Yorkshire, also feels out of options. “In a just society, we should not be having to do this,” she tells me. “But we feel cornered. We’ve got no choice.”

With her husband working full-time from home, and two children aged nine and 11 out of school, she had to furlough herself and the family took a “massive hit” on their income.

She would have driven to her parents, who live 70 miles away, if she’d known the rules could be bent. “I would’ve visited my parents, let my children have a stopover to help them feel more normal,” she tells me. “They’ve struggled terribly with this, they’re lonely and scared. They’ve been crying before bed.”

Green was therefore “absolutely enraged” that Cummings got away with his trip to his parents’. “It’s gaslighting,” she says. “We’ve basically been told: ‘What you saw and heard about staying at home isn’t what you saw and heard, you’re all mugs.’”

Could the plan work?

The question of whether to prosecute comes down to whether there is enough evidence and whether it is in the public interest.

“The information in the public domain, including Dominic Cummings’ own admissions in the Downing Street Rose Garden and some of the findings of Durham police, suggest that there is” enough evidence, according to Mike Schwarz, the lawyer from Hodge Jones & Allen representing these citizens.

“Is it in the public interest to prosecute? Durham police’s investigation appears flawed for many reasons, one being that they appear to have treated him as they would any other citizen,” he adds. “To approach his case as if he were any other citizen is an affront to the public’s sense of justice. It is also putting at risk citizens’ lives and livelihoods.”

Nevertheless, private prosecutions are rare. Under UK law, anyone has the right to bring a private prosecution, but – especially prior to online crowdfunding – they are usually far too expensive for ordinary people to pursue.

“The UK is unusual in allowing a right of private prosecution,” says Professor Robert Hazell of UCL’s Constitution Unit. “In most countries criminal prosecutions are a monopoly of the state. The rationale now is that it acts as a longstop, to guard against the state protecting its own by failing to prosecute.

“Prosecutions are also used by NGOs as another way of applying pressure or getting publicity as part of a campaign, following a disaster, like environmental spills, ferries sinking, etc, and by action groups formed by victims and their families.”

A recent example of a crowdfunded, politically high-profile case was last year’s attempt to privately prosecute Boris Johnson for allegedly lying during the 2016 EU referendum campaign. Marcus Ball raised more than £300,000 to bring a private prosecution, but high court judges threw the case out.

“The vast majority of prosecutions are brought by the state, the police and crown prosecutors. That’s how it should be,” says Schwarz. “Unfortunately, in Mr Cummings’ case, the state appears unable or unwilling at the moment to do what it should.

“That is the reason for the citizens’ campaign for a proper investigation. Private prosecutions are rare and should be unnecessary if the justice system functions as it should.”