It is reported that "questionnaires" have been sent to around 50 individuals, including the Prime Minister, seeking information about any involvement in any gatherings allegedly in breach of the Regulations - PM sent Downing Street lockdown party questionnaire by Met police | Boris Johnson | The Guardian.
The sending of questionnaires
relating to this type of of case is unusual and may be because individual officers did not come across any of the gatherings even though there is a continual police presence in and around Downing Street.Presumably the questionnaire sent to each individual is tailored to the specific suspicions against that individual. This point is not clear. The allegations (e.g. dates and times) will differ from one individual to another.
Coronavirus restrictions legislation varied over the pandemic and so, for any alleged offence, it is necessary to look at the legislation actually in force at the time. An example is the legislation applicable on 20 May 2020 - The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (legislation.gov.uk).
The legislation enabled an "authorised person" (including the Police) to issue Fixed Penalty Notices (FPN) where the authorised person had a reasonable belief that an offence had been committed. A criminal conviction is avoided if the FPN is paid within 28 days. If not paid then the case could be referred to the CPS for prosecution.
Questionnaires are sometimes used in other areas of law. For example, Health and Safety Executive (HSE) guidance contains a section on Interviews under caution by letter / correspondence but notes that, generally, an interview under caution by letter will not be the most appropriate course of action for reasons set out in the guidance. The HSE also note that any letter must include a caution and a recommendation that the suspect seeks legal advice before replying. Answers may be admissible in evidence - Direct Holidays PLC v Wirral MBC [1998] EWHC Admin 456
The 1990s saw a major change in the law regarding the "right to silence." The right is vitally important for the individual but the Criminal Justice and Public Order Act 1994 made a major inroad into the exercise of the right once an individual has been cautioned. Failure to mention any fact later relied on in defence may enable the court or jury to draw such inferences from the failure as appear proper.
Those receiving the "Downing Street Questionnaires" could choose whether to answer the questions.
In all the circumstances surrounding these events it may not have a good political look if the questionnaires are met with refusals to answer but the individuals would be within their legal rights.*
A reply offering a reasonable excuse might be accepted by the Police so that no further action takes place. In any event, it would prevent inferences in any later proceedings where that reasonable excuse is relied upon by the defence.
In the event of refusal the Police could either (a) issue a FPN, (b) request the CPS to consider prosecution, or (c) take no further action.
A FPN can be issued if there is a reasonable belief by the police officer that an offence has been committed.
A prosecution requires sufficient evidence for a realistic prospect of conviction AND the prosecution must be in the public interest.
Notes:
* There are some instances where individuals are required by law to provide information - e.g. Road Traffic Act 1988 s172 (legislation.gov.uk)
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