The McGrail Inquiry reconvened on Tuesday to hear closing submissions from lawyers representing core parties, in the first sitting of a two-day session in the Garrison Library that will bring the public hearing to a close.
Inquiry chairman Sir Peter Openshaw, a retired UK High Court judge, is tasked with looking into the reasons and circumstances leading to the early retirement of former police Commissioner Ian McGrail in June 2020, after a 36-year career and halfway through his term in the top post at the Royal Gibraltar Police.
Mr McGrail has alleged “misconduct and corruption” at the highest levels of government, insisting he was “muscled out” after being placed under huge pressure over the conduct of a live criminal investigation.
Those allegations have been “denied and roundly rejected” by the Government parties, who said Mr McGrail retired because he knew he had lost the confidence not just of the Chief Minister but of the then interim Governor, Nick Pyle, who was the only person with the power to ask him to resign.
The first closing submission came from Nick Cruz, the lawyer representing the Royal Gibraltar Police, who urged Sir Peter Openshaw to make recommendations to ensure “lessons are learned, that they translate into actual steps, and particularly practical actions and measures that would go a long way… to guarantee the rule of law prevails in Gibraltar and, importantly, that the independence of the RGP can never, never, never be compromised.”
Mr Cruz said the evidence showed that the RGP and individual officers had acted throughout the Inquiry and the events it was probing in accordance with policing obligations and code of ethics, including when reacting to errors or omissions.
He said the RGP believed a “wrongful process and procedure” had been engaged to bring about the removal of a serving Commissioner of Police “in an unlawful manner” and in breach of the Constitution, the Police Act and rules of natural justice or fairness.
The process, he said, “was unlawful” irrespective of whether the Chief Minister and the then interim Governor had lost confidence in Mr McGrail.
And he added that those tasked with the constitutional responsibility to act as a check and balance on the executive and uphold the rule of law by safeguarding the independence of the RGP had “failed to do so adequately or arguably at all”.
The Gibraltar Police Authority [GPA], Mr Cruz said, had never lost confidence in Mr McGrail and had failed to investigate the substance of the concerns raised by the Chief Minister and Mr Pyle.
“They simply concluded that his position was untenable because the Chief Minister and the interim Governor had indicated that they had lost confidence in Mr McGrail as the serving Commissioner of Police,” he said.
“The GPA therefore, whilst acting in good faith, failed to uphold the rule of law by safeguarding its own independence and the independence of the RGP.”
“It did so by failing to properly resist attempts by the Executive to wrongly exercise powers or perceived powers without adherence to the provisions of the Constitution, the Police Act and rules of natural justice or fairness, namely, fundamentally, by failing to have a proper or fair process.”
On behalf of the RGP, Mr Cruz set out a number of possible recommendations for Sir Peter Openshaw to consider in his report, with the aim of strengthening GPA oversight capacity and ensure both its independence and that of the RGP.
“The RGP recognises that this inquiry has come at huge expense for Gibraltar taxpayers in a small jurisdiction,” Mr Cruz said.
“The report that flows from you, Mr Chairman, so long as it's made public in its entirety, will go a long way to allow all stakeholders, including the RGP and the public, to express a view on whether such an inquiry has served a useful purpose for Gibraltar.”
“Mr Chairman, the RGP would encourage you to be bold, brave, ambitious, not just with the questions of factual inquiry and determination of possible culpability, but importantly, recommendations.”
“Lessons must be learned, and the outcome must benefit all of us.”
“We, the [core parties], to make it worthwhile to the public that we serve, must have broad shoulders, a tough chin and the humility to take responsibility.”
“As we said earlier, above all else, it must serve a purpose of being a very important, we say inquisitorial guide, an instrument to make way for measures that ensure the rule of law always prevails in Gibraltar.”
PATRICK GIBBS KC
Next up was Patrick Gibbs, KC, the lawyer for retired police Superintendent Paul Richardson, who at one point led the police investigation known as Operation Delhi into the alleged “hacking and sabotage” of the National Centralised Security Intelligence System [NSCIS], and into an alleged conspiracy to defraud Bland, the private company that operates the system.
In common with Mr Cruz, Mr Gibbs urged Sir Peter Openshaw to include in his final report whatever findings and recommendations “… may best defend Gibraltar against the structural dangers which have been laid bare in this room, however disturbing that may be to the status quo.”
“Of course, if you judge that the important lessons have already been learned and the obvious conflicts of interest have already been acknowledged and the red line breaches have been recognised and rectified, if you find that that's the evidence that you've heard, then little will need to be said,” Mr Gibbs said.
“But if they haven't, and if a decision has instead been made to carry on as though nothing untoward has come to light, then what is to happen here in Gibraltar when you leave and there's no higher or independent authority capable of speaking truth to power?”
“Will it simply be business as usual?”
“Unless you have been – and I recognise it's a big request - unless you have been so clear in your findings and in your recommendations that your report will itself be that authority.”
Mr Gibbs highlighted four “absences” which he said were evident during the public hearing earlier this year, including missing messages and records of meetings between the Chief Minister and Hassans senior partner James Levy, KC, and his legal team after the RGP attempted to execute search warrants at the law firm’s offices.
The law firm indirectly held a stake in 36 North, the company at the heart of the police investigation, and Mr McGrail’s lawyers have alleged that both Mr Levy and Chief Minister Fabian Picardo, as partners of Hassans, the latter on sabbatical, stood to gain financially from the alleged fraud.
Mr Gibbs said too that the Inquiry had not received “a straight answer” from the Chief Minister as to whether he had known Mr Levy was a suspect in Operation Delhi, although he was ultimately never arrested or charged.
He reflected too on the sense among police officers who at the time, even without the benefit of hindsight and the vast amount of information now available to the Inquiry, had felt “something was amiss” in the immediate wake of the attempt to execute the search warrants.
Mr Gibbs highlighted evidence to the Inquiry from former Solicitor General Lloyd DeVincenzi, who he described as “intelligent, informed, disinterested and disturbed by what he saw”.
“And his attempts to prompt the consciences of others, I submit, tell their own story,” he added, noting that Mr DeVincenzi had since left public service.
“They tell a story about him, about what he is. He is the conscience in the piece.”
“And it tells a story about them, the people to whom he should have been a conscience.”
“Because he saw the conflict of interests created around him by the 36 North, Levy, Hassan's investigation, and he saw that conflict play out…”
And he added of Mr DeVincenzi: “He's conspicuous, isn't he, for having identified both the existence and the location of red lines to which others seem to have been oblivious.”
As for his client, Mr Gibbs described Mr Richardson as a dedicated and professional police officer with Gibraltar’s best interests at heart, who had followed the evidence without fear or favour.
Mr Richardson, he added, “… did a brave thing in following the evidence without fear or favour wherever it led, because where the rule of law runs, some are not more equal than others, or at least they're not supposed to be.”
JAMES NEISH KC
James Neish, KC, the lawyer representing the Gibraltar Police Authority, said the GPA had been “plunged” into “uncharted territory” with “an air of crisis, a short deadline and no independent legal advice” when its chairman, Dr Joseph Britto, was called to a meeting with the Chief Minister and then interim Governor, Nick Pyle, and told they had lost confidence in Mr McGrail as Commissioner.
During the hearing, the Inquiry heard evidence as to whether the GPA acted independently in its decision to invite Mr McGrail to retire late May, 2020.
Mr McGrail’s lawyers have told the Inquiry the former Commisioner had been subjected to an “unfair, frankly shambolic and sham” process “stage-managed” by the Chief Minister, a claim the Government parties firmly deny.
The GPA invited the then Commissioner to retire after being told by Mr Pyle and Mr Picardo that they had lost confidence in Mr McGrail.
The two had cited reasons relating to the fatal collision at sea and Mr McGrail’s response to an audit report prepared by UK police inspectors, although these concerns had not been flagged previously.
But the GPA later withdrew that invitation after recognising when challenged by Mr McGrail’s lawyers that the decision had been taken without the necessary quorum and that it had failed to first seek feedback from Mr McGrail.
Mr Neish rejected criticism that the GPA had “abdicated its independence” and allowed itself to be “proxified”, citing its decision to withdraw the letter as proof of that independence.
“The GPA made a serious error in the process which it applied under section 34,” Mr Neish said.
“It recognised its error and it rectified its error by withdrawing the invitation to Mr McGrail to retire.”
“The GPA has not sought to obfuscate or defend the indefensible.”
“It has held its hands up, admitted its faults, tried to correct it and tried to move on and hope that the matter changes and recommendations are made.”
Mr Neish said the GPA had invited Mr McGrail to retire because the interim Governor and the Chief Minister had lost confidence in him, “which would make it very difficult for him to continue working with them”.
He said the fatal collision at sea involving a police launch and a speedboat – in which two Spanish nationals died - had been “the more influential factor” in the GPA’s decision. Mr Pyle alleges Mr McGrail withheld timely information in the immediate aftermath on the location of the collision in Spanish waters.
Additionally, the GPA was “very aware” that Mr Pyle would consider using powers to terminate Mr McGrail’s employment if the GPA did not invite him to retire. The Authority wished to make the termination “as palatable as possible”.
“Dr Britto has readily accepted in evidence that the GPA did not carry out an independent inquiry into the reasons alleged by the interim Governor and the Chief Minister for inviting Mr McGrail to retire,” Mr Neish said.
“However, the failure to investigate certain facts does not automatically translate into the GPA not being independent, generally or institutionally.”
Mr Neish said the GPA had “very little information” about Operation Delhi and that this “played no part” in its decision.
“If the GPA had given Mr McGrail the opportunity to be heard before inviting him to retire, the likelihood is that it would at least have been on further inquiry as to the Operation Delhi issues and whether it was a driving factor behind the interim Governor’s and Chief Minister’s decision that Mr McGrail should retire,” he said.
But he pointed out that for the GPA to have embarked on an inquiry into the “real reasons” behind the interim Governor’s and Chief Minister’s “wish” that McGrail be asked to retire “…would have entailed a daunting exercise similar to this Inquiry in which it did not have the expertise, resources or statutory power possessed by this Inquiry.”
Mr Neish said the situation faced by the GPA had been “unprecedented” and illustrated “how ill-equipped” the GPA was to deal with a situation of such gravity, and the lack of legislative or other guidelines the GPA could rely on to follow a proper process.
“What emerges with clarity is that the GPA considered it had no option but to invite Mr McGrail to retire given the loss of confidence in him by the interim Governor and the Chief Minister, which rendered his position untenable,” Mr Neish said.
Mr Neish echoed many of the recommendations made by Mr Cruz and agreed the GPA’s resources needed “beefing up”, noting that at present the Authority was made up of unpaid volunteers supported only by two part-time administrators, despite the Authority’s wide-ranging and onerous responsibilities.
BEN COOPER KC
The last closing statement on Tuesday came from Ben Cooper, KC, the lawyer representing three men - Thomas Cornelio, John Perez and Caine Sanchez - who were charged in the investigation and who the Inquiry refers to collectively as the former “Operation Delhi defendants”.
The case against the three men was ended by the Attorney General, Michael Llamas, KC, for public interest reasons that have never been openly revealed.
But Mr Cooper said the evidence showed the police investigation and prosecution case against his clients had been flawed from the outset and that this had an adverse impact on the three men.
“They have had to live with being the subject of unjustified rumour for more than five years, and it is exceptional and unfortunate that anyone should have to endure the public repetition of failed charges all over again in this way,” he said.
Mr Cooper said even the prosecution’s expert witness did not support the allegation that the NSCIS had been sabotaged, adding that Operation Delhi stemmed from “a classic commercial dispute that, if necessary, a commercial court should resolve”.
He described the relationship between Mr McGrail and the chairman of Bland, James Gaggero, as “too cozy” and lacking “professional distance” to ensure the allegations against his clients were properly scrutinised, including “reasonable lines of inquiry that pointed away from the prosecution as well as towards it”.
He said that at the heart of the allegations against his clients was a dispute about ownership of the intellectual property of the NSCIS software, and that Mr Gaggero had initially supported the transition of the maintenance of the system from Bland to 36 North but had then gone cold on the idea.
The RGP’s decision to pursue the investigation was “fundamentally misconceived”, in part because officers had lacked adequate legal support in their decision-making.
“The problem, the Inquiry may conclude, is systemic and lies in a failure to define the relationship between the police and the prosecutors so as to promote reliable, dependable decision-making to ensure public resources are not wasted,” Mr Cooper said.
The decision to obtain the search warrants against Mr Levy was “a monumental blunder”, the Inquiry was told, a statement that jarred with Mr Cruz’s submissions earlier on this point.
Mr Cruz said the RGP had been “well aware” of the sensitivities of the investigation and had consulted the Director of Public Prosecutions and his team before applying to the Stipendiary Magistrate for the warrants, which were granted after a two-day hearing before the judge.
The RGP had also expected Hassans to challenge the warrant through judicial review, though in the event this step was never taken by the firm.
“At no time prior to the 12th May did the Director of Public Prosecutions or the [Office of Criminal Prosecutions and Litigation] indicate that the RGP should not take these steps,” Mr Cruz said.
“The Attorney General accepted that this information was all before the DPP and no alternative was suggested by them.”
But Mr Cooper countered that submission and said alternative steps should have been considered given the implications of executing warrants at Gibraltar’s largest law firm, not least because of the complex workload this would create in order to protect unrelated legally privileged information.
“This was not just about James Levy’s mobile phone. It was about Hassans’ computers. It was about their mail servers, their file servers,” Mr Cooper said.
“What would have happened if the powers granted by this warrant had been exercised in full in practice?”
“We sometimes see this on the television news. The Enron scandal comes to mind.”
“Scores of officers trooping out of the Madison Building carrying documents, laptops. desktops, servers, and many boxes of materials, terabytes of data coming into the hands of the RGP, much of it, most of it perhaps, subject to legal professional privilege.”
“So what were they thinking of? What plan did the RGP have to deal with all of that?”
And he added: “Had the Director of Public Prosecutions been asked for his written advice on the merits of an application for a search warrant, he would clearly have said ‘don't do it’.”
“The train of events that has led us here would not have left the station.”
The Inquiry continues on Wednesday with closing statements from Mr McGrail’s lawyers and lawyers for the Government parties.