Dominic Cummings's statement: a guided tour
The FT's David Allen Green argues how to read the real meaning behind a 'lawyered' statement, and how careful phrasing can be used to cover up
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DAVID ALLEN GREEN: Hello. My name is David Allen Green, and I am a legal commentator for the Financial Times. I have been asked to do a guided tour, of a sort, through the statement read out by Dominic Cummings at Downing Street 25th of May. The document is his account of his journey to Durham and relevant matters. The reason why I think this document we pay close attention is that a great deal of attention was given to how it was written.
For me, the document looks like a witness statement. It has for style and the content of a witness statement. And as we will go through the document, you will see that it has been written carefully, again, like a witness statement. Witness statements are often drafted by lawyers. Although they are in the name of the witness, the lawyer will make sure that all the relevant evidence is set out in a clear and accessible way so that the court can go straight to the relevant evidence.
They are somewhat artificial documents, but they do actually have to contain what the witness wants to say. So in a way, a witness statement is a ventriloquist's instrument. It allows words to be placed in a formal and structured way so that you can go to the relevant parts of the evidence. In my opinion, the statement read out by Dominic Cummings yesterday was drafted by lawyers on his behalf. And setting out the information he had provided to them, the document is structured so that it explains or, if you are cynical, explains away, all the evidence which had actually emerged about his movements in and around Durham.
The document also is careful to set out in a way which is helpful to any future court or other organ of the state what his justifications were at each stage for what he did. And although this review of this particular document is interesting in and of itself, it will also be helpful for people who look at other witness statements to see, in a way, what is happening under the bonnet, to see how different parts of the document cohere or don't cohere and what the purpose of each part of such a document is.
So this exercise is not only about what Cummings said and didn't say yesterday, but also how these documents can be useful basis for trying to work out what is being said and not said in other circumstances. In short, being able to read a witness statement properly is a valuable skill, not only for lawyers.
The document which is on your screen now comprises the statement he said yesterday. However, I have added a title and the date and the place, and I have also added subheadings. The subheadings were not part of the original document. They are here for the convenience of this review.
The document is set out broadly chronologically, and so that is the order we will take it. The document starts with a couple of brief comments about what happened on Thursday the 26th of March. This is where the story begins. And it starts at just around midnight with the conversation between Cummings, so he tells us, and the prime minister. The prime minister says that he tested positive COVID.
Why do we start with that date? Well, reason why we start with the 26th and no other point in the story is that, in turn, explains and contextualises what happens next day when we move down to the 27th of March. A lot happens on this day. And it is important but we make sure we keep track of what is being said and not said in this document about what's happened on that day. We start with the morning. We get the phone call from the wife, and then we get him going home.
There is the reference to him running down Downing Street, which was widely reported at the time. So already, this ties in with externally known information. He then returns and then goes home again. You will notice already that almost every sentence begins with the relevant person, I, she, we, the prime minister. Or each sentence begins with where we are in the day, that evening, and so on. This is the hallmark of a document being written by lawyers. It is a very brisk almost Hemingway-esque way of writing.
Normal human beings tend not to write like this. Normal human beings will tend to begin their sentences in a whole range of ways. But if you are writing a witness statement, it is always helpful and a good discipline to state at the start of each sentence who is actually the subject or object of that statement.
We then come to, legally, the meat of the document. And I've put in the heading here, the reasoning for decision. Because, from a legal point of view, the key purpose of this document is to show that, at the point he left his house in London to commence the journey north, he had a reasonable excuse.
The way the law works here is that you are prohibited from leaving your house during the lockdown period unless you have a reasonable excuse. This document, although you would not notice this in the way it was originally provided, suddenly switches from narrative position. And in a lovely touch, there are three explanations for the decision, numbered first, second, and third. Often, when you are trying to explain a decision in a witness statement which is of any legal significance, you will tend to have at least two or three reasons.
This is because, if one of those reasons is knocked out or shown not to have any sound basis, there is another reason there to substantiate it. One key legal vulnerability for Cummings at this point is, if it is shown that at that point he left his house he did not have a reasonable excuse to leave, then he could have exposure to criminal liability. And so the person who drafted this statement ensured that there were three reasons for why he left his house and has helpfully numbered them for us first, second, and third. And these are quite serious ones.
The first one is his wife and he are seriously ill. The second is that his work is nationally important. The third is a security reason. You don't posit reasons like this by accident. Some thought has gone into making sure that these reasons are the reasons which would pass muster with anybody who is charged with reviewing those reasons for that decision. We then, separately, have a description of the circumstances which meant that he had to leave the house.
He has, you will see, a tentative conclusion. And then he, for some reason, discusses relevant information-- the offer of help, the fact that he could leave his family in a safe place, and that he had no neighbours in the normal sense of the word. Considerable thought has gone in to making the reason for him to leave that house and the considerations he adopted and the three good reasons he has as solid as possible because the key risk for him about the departure from his house is that he did not at law have a good reason. And so every possible way of showing he had a good reason has been covered.
This would not happen by accident. This shows that thought has gone into structuring and the contents of this document. He also has to explain or explain away how he didn't tell the prime minister about it-- the dog that does not bark. And so just to ensure that this is as complete as possible so that the lack of evidence can also be explained, that is also placed under this section.
So once he has finished this detailed exposition, he then returns to the narrative. This is worth highlighting because most people, when they are giving a decision about a movement, will tend to mix information about the movement and the decision. But you will see that was quite a clean break between narrative and exposition and then back to narrative. He has to explain that, as somebody in this situation, he did not stop so that anybody else could risk having infection. So this is explained or explained away.
We then come to the 28th of March, which is a Saturday. He then has to explain what happens on that day. Significantly, it is not until the next morning, fortunately, that he's developed symptoms. And so he was able to travel north without having these symptoms, but he now clearly had them once he arrived. Because, however, very little goes to reasonable excuse after he arrives, logically, because it needs to be something you have at the point of departure, you will notice that his story becomes far less detailed, suddenly on the 28th of March, having lovingly detailed every possible thing about his decision before the 28th of March.
Now, after the 28th of March, we have not a continual narrative of what happened whilst he was in Durham, but attempts to explain or explain away various pieces of evidence which emerged or could emerge about what he did in Durham. On the 2nd of April, there is a journey to a hospital.
Some people have said that this account lacks plausibility and that there is a certain elaborate sequence of movements which are posited here about who moves, who doesn't, who stays, who doesn't stay. It's a short passage, but it is there because it would explain any evidence to show that on the 2nd of April he or his wife were not in the cottage.
We then have something which is of a known date. It is in the second week. He tried to walk outside for house. Fortunately, the house adjoins woods which are owned by his father. And so he went into these woods, and he was seen. This is significant because it explains or explains away evidence that he was not in his cottage on that particular time.
However, he does not know what date that evidence would emerge. And so he is not actually put the date on this. We then move on to the 11th of April. He's still feeling weak and exhausted. But other than that, he had no COVID symptoms. He thought he would be able to work the following week, possibly part time. This is a Saturday.
The importance of the date is that, around this time, it could be argued that he had done the 14 days necessary of self-isolation because he would not be able to legitimately, in accordance with guidance, travel back within those 14 days. And so interestingly, just before the key date about one event in and around Durham, the day before was mentioned. It is, by his account, the 14th day after he had first developed symptoms. We know that because he expressly says on the 12 April that it was the 15th day.
The impression this gave me is that this date had been selected for part of the narrative because it was on that 14th day. He says that he sought expert medical advice. He explained the symptoms and all the timings and asked if it was safe to go back to work on the Monday, Tuesday, seek child care, and so on. I was told that it was safe, and I could return and seek childcare. So on the 14th day, he got that information.
This is important, not only looking backwards so that it was the 14th day since he went into self-isolation, but because it also explains that he was able to do what he did on the 12th of April. The 12th of April is a significant date in this narrative. 12th of April was a Sunday. It happened to be Easter Sunday.
According to certain reports, it also happened, fortuitously, to be the birthday of his wife. But the main reason why this day is here in this statement is because this was the date of his trip to Barnard Castle. It is a fascinating account, just over about two, three paragraphs, as we've restructured it here.
It is worth looking carefully. Again, almost every sentence begins with the relevant person or the time of day or what they were doing. So on Sunday, my wife, she, we, we, we, we, I, we, we-- if anybody, like me, is a fan of Dominic Cummings' blog posts, you would think that he had developed a very different style of writing. Instead of his elaborate, almost rambling style in his blog posts, which are more akin to James Joyce or Virginia Woolf, we get Philip Larkin mixed with Ernest Hemingway. Every single sentence is as sharp as possible apart from one.
If you go down this narrative, a short sharp shock of every sentence, starting with either the person or the time of day, stops and suddenly changes too, but at no point did we break any social distancing rules. The only departure from the sharp style is when he claims or disclaims the point in respect of compliance with the rules. If you look at this passage carefully, the content of it, you will see that it is having to do a number of tasks.
It is having to explain how it could possibly be that somebody saw him in Barnard Castle. It also explains how somebody could have possibly also have seen him in the woods outside. He is also having to explain why he was able to be seen by a man in Barnard Castle and by people in the woods outside and also maintain social distancing.
But the main thing this passage has to achieve, from a legal perspective, is to explain how, for this excursion, which was not in the woods on his father's estate and so was outside of his private property, his home, how this excursion also met the legal requirement that he have a reasonable excuse for leaving his house.
Unfortunately, for the person drafting this statement, there is far less to go on than previously for the journey from London to Durham. And so what we have is an explanation, an odd explanation, which many would find unconvincing about him having faulty eyesight and that he was going to do a drive from where he was to Barnard Castle, which was not a deliberate goal of his journey.
You will see he says, we drove for roughly half an hour and ended up, as if like magic, on the outskirts of Barnard castle, as if that is the sort of thing you just come across when you drive for half an hour, a major tourist attraction. But they don't visit it. But you will see that, again, he keeps on saying that it's about safety. And it would appear to me that this passage here is an attempt to explain why this excursion to Barnard Castle was a reasonable excuse. That, it was to ensure that he was in a sufficiently able state to take the journey south.
The problem here is that, unlike the references to safety, national importance, and health of the child and family and child care, which he had for the journey north, none of that is present for his journey to Barnard Castle. And so what we have is an attempt to show that it really was about health and safety. But in my view, it is a preposterous explanation.
It doesn't add up. In my view, anybody worrying about eyesight problems would have been better to follow the explicit guidance in the highway code of being able to test your eyesight before taking to the road. He does not do so. It is also interesting, almost like the bullet of Kennedy, how often he manages to keep on getting out of his car.
So you will see in the second paragraph of this section, we headed home. My wife and I jumped out into the woods by the side of the road. They were briefly outside [INAUDIBLE]. I briefly joined them. They played for a little bit, and then he again gets out of the car and goes outside, even though, according to his own narrative, he had already briefly joined them outside.
They were then briefly in the woods. And then we come to the point of this fairly convoluted and, in my view, unconvincing narrative. We saw some people at a distance, but at no point did we break any social distancing rules.
You will see that they are so eager to explain away how he was able to be seen in the woods as well as by the Castle, maintain social distancing, and also have a valid explanation for having left for property. In my view, this does not accord with Regulation 6. And this is where I think he would face more exposure under the regulations. Of course, it would be a matter for the court to adjudicate any criminal liability.
Now, we have the explanation of the 12th. We then go on to the explanation for what happened the next day. We returned to London. At no point between arriving, leaving Durham, did any of them arrive, enter the parents' house, and the only exchanges. And so what we have here is an explanation for how they then made the journey back on the 13th, that it was safe.
He has less reason to have to explain away his journey back to London and to work because the regulations are clear that, if you are moving to your own property or you are moving for the purposes of work, that is a valid, reasonable excuse under the regulations. And so this point is not laboured here because it doesn't need to. And there can be no complaint under the regulations about his journey back to London or to work. It was the journey up there and the journey to Barnard Castle, which is more legally problematic.
The rest of the statement then deals with various odds and ends and makes some general statements. There is a denial, a fairly robust one, that he could not have been there on the 19th of April as reported, which is the only time he actually goads people to trying to look at external evidence and even invites people implicitly to have a look at the data on his telephone, which, interestingly, he doesn't mention at any other point in this statement before that.
He even refers to the death of his uncle, which, curiously here is called his, my mother's brother. So John Laws was one of the greatest appeal judges of recent times. And there had been speculation that his ill health and his death was one reason which could have influenced some of the decision-making and conduct described in the statement. He then puts that to one side.
He then, at the end, makes a number of general comments and justifications, which go back to what he said before. You will see that these are, I believe, I thought, I understand, I know, I fought, and so on. Everything is put in his own subjective view. But these are attempts for him to describe his overall frame of mind. And then, finally, we get two things.
He has to explain when he said this to the prime minister. He, again, is vague. Even though, previously, he had said that people could look at his telephone data, he did not look at his telephone to find out when this phone call was taken or made. He also has to explain why he didn't actually tell anybody.
And then, at the end, there is a passage where, although a great deal is said, I understand, I know, and I know, I wanted to explain, and I think-- there is not an, I apologise. That is not an I am sorry. There is not even an I regret. What he is doing here is robustly, asserting that, because of what went before, he did nothing wrong. And so this brings us to the end of the statement.
You will notice, at the end of the statement, there is blank space. If this was a witness statement, that blank space would have what's called a statement of truth where somebody has to state, under peril of perjury, that they believe the statements in a witness statement to be true. Obviously, this is a statement which he read out, so it wasn't really a witness statement. But one would ask whether, if this was a witness statement, he would actually sign that statement as a statement of truth.
And the reason why I mentioned this point is that, if you recall, before the prorogation case, nobody in government, no minister, no advisor, no official could be found to sign a witness statement explaining why the government had sought a five-week prorogation in the run up to Brexit.
And that was why, effectively, the government lost the case at the Supreme Court. This document took a lot of time to write. It pays close attention. Every sentence here is doing at least one job-- to explain evidence, to explain away evidence, to show reasonable belief, to try and show that certain decisions were made on the best possible basis.
I have no doubt that this document was drafted by a lawyer unless somehow Dominic Cummings had changed his writing style from that shown in his blog posts to somebody who is a skilled settler of witness statements. But a lawyer drafting a witness statement is only as good as the information which they have to hand or can verify. This statement was compiled at speed over a weekend. It is impressive that it's as good as it is.
But to the extent to which this information actually contains things which may or may not be true isn't the fault of the person who wrote it. It would not be the fault of the person who drafted the statement. It would be the fault of the person who provided the underlying information. This is just one example of a witness statement. You will often find others. During the Leveson inquiry, the witness statements put forward by News Group showed that there had been various incidents which we were able to show turned out to be hacking.
Close reading of witness statements is a valuable skill. But the key is to work out why each sentence is the way it is, why each paragraph and proposition is the way it is, and what also is not stated which could be stated.
Thank you for joining me on this guided tour of this statement. It is worth reading in and of itself, not only to follow what is happening with the current political crisis, but as a way of showing that, when faced with a serious risk of liability or exposure to liability, how somebody with access to lawyers and with a certain degree of power and determination can structure what happened in a way which makes it as difficult as possible for that liability to actually be imposed upon them.