Deleting potential evidence of Downing Street parties could be a criminal offence, a watchdog has warned after The Independent revealed claims that staff were advised to “clean up” their phones.
Two sources claimed a senior member of staff told them it would be a “good idea” to remove any messages implying they had attended or were even aware of anything that could “look like a party” amid a Cabinet Office investigation into several alleged gatherings.
A spokesperson for Downing Street said they did “not recognise” the claims, adding: “Staff were given clear guidance to retain any relevant information.
“As set out in the terms of reference, all staff are expected to fully cooperate with the investigation.”
The Information Commissioner’s Office said it was an important principle of government transparency and accountability that official records are kept of key actions.
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“Relevant information that exists in the private correspondence channels of public authorities should be available and included in responses to information requests received,” a spokesperson added.
“Erasing, destroying or concealing information within scope of a Freedom of Information request, with the intention of preventing its disclosure is a criminal offence under section 77 of the Freedom of Information Act.”
Campaign groups The Citizens and Foxglove sent the government a legal letter over The Independent’s report, amid an ongoing judicial review over its WhatsApp policy.
It said any member of the government, or their staff, who followed any instruction to delete WhatsApp messages would have broken the law.
Cori Crider, Foxglove director, said: “There’s little point in holding any inquiry if bosses make staff delete key evidence the moment it’s announced. So we’ve written to seek an urgent explanation of what has been lost and to warn Number 10 not to scrap anything else.
“Government by WhatsApp threatens our democracy. This gap in the public record has to be plugged - now. That’s why we’re taking the government to court in March.”
Personal phones cannot be accessed by Sue Gray’s investigation unless staff volunteer them, and she does not have any legal power to compel evidence from MPs and ministers.
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The report is expected to give a factual account of the gatherings and individual conduct, but may stop short of attributing responsibility or alleging breaches of coronavirus law and guidance.
Whitehall insiders view Ms Gray’s task as “impossible” under the weight of public expectation, given her lack of legal powers and government push for a “swift result”.
Addressing MPs on Wednesday, the prime minister said he would make a statement to parliament after Ms Gray has completed her inquiry and “the full facts have been established”.
Minister Michael Ellis previously said the government would publish the findings of the investigation as soon as possible, adding: “It will establish the facts, and if wrongdoing is established requisite disciplinary action will be taken.
“As with all internal investigations, if evidence emerges of what was potentially a criminal offence the matter will be referred to the Metropolitan Police.”
The terms of reference for the probe state that it will cover alleged gatherings at Downing Street, the Department for Education and any other “credible allegations”.
“The primary purpose will be to establish swiftly a general understanding of the nature of the gatherings, including attendance, the setting and the purpose, with reference to adherence to the guidance in place at the time,” the document adds.
“If required, the investigations will establish whether individual disciplinary action is warranted.
“The work will be undertaken by officials in the Cabinet Office at the direction of the Cabinet Secretary, with support from the Government Legal Department.
“The team will have access to all relevant records, and be able to speak to members of staff.”
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It said that ministers, special advisers and civil servants are “expected to cooperate” and any breaches of the ministerial code would be dealt with “in the normal way”.
The Metropolitan Police has not launched a criminal investigation into Downing Street’s May 2020 “bring your own booze” event or a later alleged Christmas party, as it awaits the results of the internal probe.
The Independent understands that the force is in close contact with the Cabinet Office and plans to decide on further steps after assessing the outcome.
If a criminal investigation is not launched, responsibility for sanctioning any wrongdoing by ministers could sit with the prime minister, while civil servants could be disciplined through normal departmental processes.
On Thursday, the Green Party called for the police to take over the investigation and said an internal inquiry was no longer sufficient.
Baroness Jones said: “Since Boris Johnson's admission of an event at 10 Downing Street, this has clearly become a matter for the police, not an internal inquiry to be carried out by a colleague of the people who attended these gatherings.
“Ms Gray may be independent-minded but this is not an independent inquiry. Her inquiry is owned by the prime minister and she has to check its publication with him.”
A letter sent to Metropolitan Police commissioner Dame Cressida Dick questioned whether officers guarding Downing Street were aware of the 20 May 2020 event at the time.
“The Met Police must now start a formal criminal investigation, gather evidence and speak to witnesses as a matter of urgency,” it added.
Scotland Yard has declined to comment on questions over how police guarding the entrance of 10 Downing Street, and close protection officers assigned to high-profile ministers, could have been unaware of the alleged gatherings.
There is no formal guidance stating that police officers must report any crime they witness, even if assigned to other duties at the time, but the College of Policing told The Independent: “If an officer recognised the fact a crime had taken place and then deliberately chose unjustifiably not to take any action in relation to this, it could result in disciplinary procedures by breaching the standards of professional behaviour.”
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The Metropolitan Police said it had received numerous complaints about its response to alleged Downing Street gatherings, and each had been assessed individually.
It said no action would be taken on Baroness Jones’ initial complaint, regarding a 18 December 2020 Christmas event, because of the “absence of any corroborating evidence”.