A judicial review is being sought over the failure of the director of public prosecutions, Max Hill, to investigate Dominic Cummings for alleged breaches of the coronavirus lockdown rules.
The complaint has been lodged on behalf of a member of the public, Martin Redston, who is concerned the DPP has shown insufficient independence from the government over the movements of Boris Johnson’s key adviser.
Redston’s legal team, headed by the barrister Michael Mansfield, gave Hill a deadline of last Thursday to state that the Crown Prosecution Service (CPS) was actively considering the case against Cummings.
On Tuesday, after the deadline had passed and Hill’s office said it was a police matter, Redston’s lawyers began proceedings in the high court to seek an urgent judicial review.
The grounds for the filing noted that the attorney general, Suella Braverman, had tweeted her support for the prime minister’s chief aide, without allowing due legal process to take place, on the day after the Guardian and Mirror revealed Cummings’ trip to Durham during lockdown, and before they reported his trip to Barnard Castle.
It said: “There is a lack of an appearance of independence to the decision-making of the DPP which arises from the scheme of subordination of the DPP to the attorney general.”
The grounds for the action also noted that Hill refused to disclose any communication he may have received from Johnson, his ministers or officials over the Cummings affair. It said: “The manoeuvres of the government and use of its powers behind the scenes is of obvious concern given the history of the this high-profile case.”
It said the DPP had a duty to take “active steps to ensure the maintenance of public confidence in accountability to, and enforcement of, the law that is designed to protect the public from the ongoing threat of Covid-19”.
A statement from Redston’s solicitors, Hackett & Dabbs, said: “The DPP has failed to exercise his discretion to refer the matter to the police on Mr Redston’s request. Consequently there has been a failure to engage with the need for public confidence to be restored: the law applies to everyone.”
Redston told the Guardian: “I feel this is a matter of public concern especially now that people are using the ‘Cummings defence’ to do whatever they like during the pandemic, after previously complying with the regulations. This is not a political action. It is about ensuring that the law is upheld.”
Redston, who runs a London-based civil and structural engineering business, added: “People will say: ‘You’re a Guardian reader you would do this’, but 71% of the population believe Cummings breached the regulations. And quite a number of Conservative MPs are also unhappy.”
Asked if he could afford the cost of a legal action, Redston said: “It is expensive but we can afford it.” He is also seeking crowdfunding for the challenge.
A CPS spokesman said: “Investigations into alleged criminal conduct are a matter for the relevant police force. This application for judicial review will be contested and in those circumstances we cannot comment further.”
Afzal said that if the CPS and the police did not investigate he would consider launching a private prosecution on “behalf of every citizen whose goodwill and generosity led them to make painful sacrifices in order to comply with the law and protect their fellow citizens”.
Afzal’s older brother Umar died of coronavirus on 8 April while self-isolating at his home in Birmingham. At that time Cummings was in Durham, 264 miles from his London home.
A three-day investigation by Durham police into Cummings’ movements found he probably 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 on her birthday.
But the force decided to take no further action and made no finding in relation to “stay at home” government guidance over Cummings’ decision to leave London for Durham.