Met’s request for Sue Gray report redactions only muddies the picture

Scotland Yard’s statement that it has asked for “minimal references” to certain events covered in Sue Gray’s report provoked confusion and anger.

The effect of Friday’s intervention was to diminish the chances of Gray’s report being published in full any time soon. It also heightened speculation about what the force is actually investigating.

Scotland Yard said it did not want Gray’s report to “prejudice” its own inquiries – which had only begun when the civil servant shared her findings with the Met last weekend.

Related: Sue Gray report facing further delay after Met police intervention

Scotland Yard’s request has no legal force

So, has Gray been snookered by talking to the police?

Experts say this isn’t the case. The Met’s request is just that – it has no legal force. “They have no legal power to cause a redaction or the report being published in some shorter version,” said Nazir Afzal, former chief crown prosecutor for north-west England.

With respect to the prejudice the Met are trying to avoid, some lawyers suggested it may refer to the risk of unfairly influencing any court case.

However, contempt of court only applies when proceedings are “active”, usually when someone has been arrested. “I am sure that there would have been an announcement if someone had been summonsed or charged, and so I think that can be discounted,” said Kate Bex QC, a criminal barrister at Red Lion chambers. “There is an active police investigation, but that is different to proceedings being ongoing.”

Also, none of the crimes committed by individuals under the Health Protection (Coronavirus, Restrictions) Regulations, which covers social gatherings during lockdowns, can be tried by jury.

At the lowest level are fixed penalty notices, which are issued by police, with the only alternative being a magistrates court hearing or a case dealt with under the single justice procedure, where rulings are made by a single magistrate sitting with a legal adviser.

So, could the police be investigating more serious offences?

Given this, some raised the prospect that the Met’s statement indicated it was investigating offences that could be tried before a jury.

The Green party peer, Jenny Jones, has called on the police to investigate misconduct in public office – where a public officer wilfully neglects his or her duty and which carries a maximum sentence of life imprisonment – in respect to the alleged breaches.

Similarly, there have been suggestions that officers could be investigating perverting the court of justice, which also carries a maximum sentence of life, over possible attempts to cover up wrongdoing. This was fuelled by a report in the Independent that No 10 advised staff to “clean up” their phones amid allegations about lockdown parties.

But the Met seemed to scotch this idea on Friday when it clarified it was looking only at possible breaches of Covid rules – equivalent to a parking fine.

Andrew Keogh, a barrister who runs the CrimeLine website, said the police were likely to be attempting to protect their hand when carrying out their own interviews. “If there’s any level of detail in the report about the alleged events, naming people and accounts of what went on and who might have initiated this, that and the other, then it seems to me from a policing points of view you wouldn’t want that in the public domain.

“You want to put things to people so they’re sort of blinded by it, so: ‘Were you in the basement of number 10 on this date?’, they say no, and then you say: ‘Well, we’ve just spoken to John Doe and John Doe says: “You were dancing on the photocopier etc.’

“This is quite powerful, playing off lots of people against each other and holding the cards to your chest as to whatever evidence you do have and, as importantly, what evidence you don’t have.”

‘It makes no sense’

Afzal agreed that a fear of “contaminating evidence” might be behind the Met’s move but said it was misguided given that witnesses would already have had plenty of time to confer, as well as the wider public interest in the case.

“This is not a subject that has been in the shadows,” he said. “People have been talking about this for weeks and months. I have little doubt that witnesses have discussed this, so the idea that something will be said in this report that might contaminate the case, I think, is an exaggerated risk. Anyway, they’ve got to balance that with public confidence and the court of public opinion.

“They want this report in full because they’ve been promised it in full. As recently as three days ago the Met said they had no objections to it being published in full and so it makes no sense. All it is doing is feeding a perception that there is some kind of collusion going on between government and policing.”