Attorney General Michael Llamas, KC, urged police to exercise “tremendous care” with their investigation into the alleged hacking of the national security system, fearing it could be exploited by Spain to undermine Gibraltar against the backdrop of sensitive treaty talks, the McGrail Inquiry heard on Thursday.
In evidence to the Inquiry, Mr Llamas was categorical that it was “absolutely not” the case that he had sought to influence or interfere with the police investigation.
Mr Llamas was quizzed for five hours by Julian Santos, the lawyer for the Inquiry, on Operation Delhi, a police investigation into the alleged “hacking and sabotage” of the National Security Centralised Intelligence System [NSCIS], and into an alleged conspiracy to defraud Bland, the private company that operates the system.
He was asked too about the events triggered by a police attempt to exercise search warrants on May 12, 2020, at the offices and home of Hassans senior partner James Levy, KC, who at the time was a suspect in the investigation though he was never arrested or charged.
The Inquiry had previously heard that Hassans held a stake in 36 North, the company at the heart of the police investigation, and Mr McGrail’s lawyers have alleged that Mr Levy and Chief Minister Fabian Picardo, as partners of Hassans, the latter on sabbatical, stood to gain financially from the alleged fraud.
Mr McGrail claims that he was placed under intense pressure by Mr Picardo and Mr Llamas to steer the investigation away from Mr Levy, and that he was eventually “muscled out” out of his job.
On Thursday the Inquiry heard that Mr Llamas, accompanied by his then senior advisor Lloyd DeVincenzi, met with Mr McGrail and then Superintendent Paul Richardson, who was heading Operation Delhi, on April 7, 2020, just over a month before the search warrants.
Mr Llamas said the purpose of that meeting had been to trim down a long list of potential charges prepared by the RGP in respect of three people already arrested at that time, and to discuss the issue of ownership of the security system, which was unclear.
During the meeting, the Attorney General said he made clear his concerns about potential reputational risk to Gibraltar at a delicate juncture in post-Brexit treaty negotiations with the EU.
He was concerned too that Spain might seek to exploit the investigation to undermine British sovereignty and attack Gibraltar’s self-government.
Spain, Mr Llamas said, had “historically and persistently” exploited any opportunity to criticise and bring international pressure to bear on Gibraltar “in order to tarnish our reputation and our economy and thus undermine our quest for international recognition of our right to self-determination”.
The Attorney General said he advised Mr McGrail that it was “vital” that Operation Delhi proceeded, but that it must be conducted “prudently and with tremendous care”.
Mr Llamas left that meeting in the belief that the RGP would not take any drastic step in the investigation until the charges and ownership doubts had been resolved, and the issues had been discussed again with him and the Director of Public Prosecutions, Christian Rocca, KC.
“That for me was a prudent and a careful approach, considering the context on reputation and everything else,” Mr Llamas told the Inquiry.
“Not trying to interfere, certainly not, but just giving him [meaning Mr McGrail] the benefit of my view of what is really important to this jurisdiction at a particularly difficult period of our history.”
“And if I have called him in to tell him, ‘Ian, be careful, take tremendous care with this investigation’, that meant what it meant, and as a minimum, I think it would have meant ‘don't take any radical steps, any major steps in the investigation until you've done this’.”
“Just pure advice, which obviously he chose to ignore, which is fine, but that is all I was doing.”
Mr Llamas said that when he learnt of the search warrants on May 12, 2020, he felt “betrayed” given what he believed had been the agreement a month earlier.
Mr McGrail denies any such agreement but Mr Llamas insisted that the position at the April 7 meeting had been “clear beyond peradventure”, adding it was “obvious from the context of the meeting” that this had been agreed.
The Attorney General accepted that the decision to seek the search warrants was “obviously” within the operational options available to the RGP.
“But I was certainly very disappointed, very disappointed, when I discovered that he had not spoken to me about it,” he added.
MAY 12
Mr Llamas was asked about a fractious meeting in the Cabinet room on May 12 with the Chief Minister and Mr McGrail, during which the former Commissioner says he was “berated” and given “a dressing down” by Mr Picardo over the search warrants.
The Attorney General acknowledged that it was a “difficult” and “uncomfortable” meeting and that the Chief Minister had been angry.
But he disagreed that Mr Picardo had berated Mr McGrail, who he described as “a tough man” who had “stood his ground” and “defended himself”.
Mr Llamas said Mr McGrail had told them the DPP had advised the RGP to “proceed by way of search warrants”, something both he and the Chief Minister had thought unlikely. Mr McGrail denies saying this.
After the meeting, Mr Llamas contacted the DPP and reported back to the Chief Minister in a WhatsApp message that Mr Rocca had “strongly advised against a search warrant”, which suggested McGrail had lied in the Cabinet room.
But Mr Llamas accepted in evidence on Thursday that this message did not reflect what the DPP had told him and that he “got confused about that”. He could not explain why.
What the DPP had in fact said was that he had not advised on a search warrant and that this was an operational matter for the RGP, the Inquiry was told.
Mr Llamas said the “misdescription” in his WhatsApp message to the Chief Minister was “irrelevant”.
“What was relevant here was, has the DPP advised the RGP that they should proceed on the basis of a search warrant?” he said.
“That was the question and that was the question I put to the DPP.”
‘DON’T WORRY’
Mr Llamas was also asked about a WhatsApp exchange with Mr Levy late on the night of May 13, the day after the warrants.
Mr Levy messaged “I feel I’ve been hung out to dry”, to which Mr Llamas replied: “Don’t worry”.
The Attorney General said he did not know who or what Mr Levy was referring to and that his message had sought only to shut down the exchange.
“Do you consider that it was appropriate for the Attorney General to say ‘don't worry’ to a suspect in a live criminal investigation?” Mr Santos asked.
Mr Llamas replied that it was an exchange that occurred late after a busy day and while he was still at the office clearing his backlog and preparing for a forthcoming Brexit meeting.
“All I was doing was ending a conversation or an exchange before it started,” he said.
“In the context now of this inquiry that looks very sinister, [but] there's nothing to it.”
And he later added: “I was working until midnight that day and this message arrived in the middle of all of that, and the last thing I was going to do was to engage.”
“So I said, don't worry, and the conversation ended and I succeeded in doing that and that’s all there is to it.”
Mr Santos asked: “Do you accept that your message could be understood as giving an assurance to Mr Levy that he would be protected?”
“I don't care, because exactly the opposite had been agreed that same morning,” Mr Llamas replied.
“I was, in fact, lying to Mr Levy, because in that day's meeting [with the RGP] the outcome was that we were going to rebuff the letters that we were receiving from Hassans and that the investigation was continuing.”
“So there was everything for him to be worried about that evening.”
CONTACT
Mr Llamas was asked too about his contact after May 12 with Hassans partner Lewis Baglietto, Mr Levy’s lawyer.
The Attorney General said he was not surprised when he was contacted by Mr Baglietto and that it was not the first time a lawyer had contacted him directly.
At that point Hassans was making serious allegations against the RGP over its use of the warrants and had written to Mr Llamas in his capacity as the guardian of the public interest, given its concerns about process.
Mr Llamas said that given the gravity of the allegations, he thought it proper to meet with Mr Baglietto.
Mr Llamas rejected suggestions that he later applied pressure to Mr McGrail and the Operation Delhi investigators to protect Mr Levy.
He said meetings with the RGP after May 12 related to how they would respond to the allegations being made by Hassans, adding: “At that stage it was crisis management.”
Those discussions had been covertly recorded by Mr McGrail, something Mr Llamas described as “a complete betrayal” and “unbecoming behaviour”.
Asked if he had sought to interfere with or influence the investigation, he replied: “Absolutely not.”
He reiterated repeatedly that his motivation throughout had been to protect Gibraltar and the Office of the Chief Minister at a very challenging and delicate time for Gibraltar.
COLLISION
Earlier in his evidence, Mr Llamas answered questions on the collision between a police vessel and a suspected smugglers’ rigid-hulled inflatable boat [RHIB] in the early hours of March 8, 2020, in which two Spanish nationals died.
The Inquiry had previously heard that the then interim Governor, Nick Pyle, felt the former Commissioner had, for three days, withheld information from him on the location of the fatal collision in Spanish waters, an incident that had clear international implications that fell within the Governor’s constitutional remit.
For Mr Pyle, this was a key element of why he lost confidence in the former Commissioner.
Mr Llamas said that even on the morning of March 8, it was clear to him, based on provisional coordinates provided to the RGP by the Guardia Civil, that it was “highly likely” the collision had occurred in Spanish waters.
He could not recall Mr McGrail using those exact words and said the Commissioner had been focused on trying to confirm the exact location.
But he recalled them discussing that the information from the Guardia Civil put the incident six nautical miles into Spanish waters.
Mr McGrail has insisted that he was open and transparent with Mr Pyle at all stages but that it was a dynamic situation and that confirming the location independently had proved difficult.
He also believed information he was sharing with the Attorney General and the Chief Minister was being passed on.
Mr Llamas had in fact dined with Mr Pyle on March 8 and, while he could not recall explicitly, said it was “inconceivable” that he would not have shared any information that he had about the collision.
But he said the Commissioner had a “constitutional and statutory obligation” to ensure Mr Pyle was properly briefed in a timely manner on a situation that fell within the Governor’s constitutional remit.
“The Commissioner of Police has his own lines of communication with the Governor and it was for him to report directly to the Governor,” he said.
“My relationship with the Governor and indeed the Chief Minister is not to be transmitting messages to them all the time.”
Mr Llamas told the Inquiry it was his belief that he had been given different information about the location to what been provided to Mr Pyle between March 8 and March 11.
“If [Mr McGrail] was more relaxed about sharing information that he had received from the Guardia Civil with me than he was with the Governor, that’s a matter for him.”
‘DISQUIET’
The Inquiry heard too from Lloyd DeVincenzi, who at the time was senior advisory counsel in the Attorney General’s office and later Solicitor General before leaving public service in November 2022.
Mr DeVincenzi said that even early on in Operation Delhi, he had thought it necessary that different roles be firmly identified, in particular in respect of the Attorney General and his office.
He had advised the Attorney General accordingly, including referring him to a report about a scandal in Canada involving political interference with the justice system.
“I thought it was possible that a similar scenario could play out,” he said.
“Things happen in complex democracies, lawyers come under immense pressure.”
“And pressure needn't be sinister, but I thought it was important to look at what might be happening in the background, what might be plausibly happening in the background, or could plausibly happen in the future, and for him, if he needed it, to gird his loins against any sort of importuning by anyone, and I thought it was a useful matter for him to be familiar with.”
At the time, he said was considering potential theoretical scenarios and had no reason to believe there was any pressure being applied on the Attorney General.
But he left no doubt that the investigation, because of its nature and the names that were being drawn into it, left him with “a sense of disquiet”.
He said he became aware over time that this was not “an ordinary kind of case” and that Mr Llamas would have to proceed with “great delicacy and protect the integrity of his office”.
By way of example, Mr DeVincenzi referred to the question of ownership of the security system, which was central to some of the charges that police were proposing at the time, but which was unclear.
“I thought Michael might be adopting views, for example, on the ownership of NCSIS, which weren't his own, that he might not have thought through thoroughly [even though] he's a very thorough lawyer,” Mr DeVincenzi said.
“But I had the sense that there were certain conclusions, for example to do with the ownership of NCSIS, which I didn't share, which I couldn't see how he shared, but which he did seem to opine on as had the Chief Minister.”
“And I found it, I suppose, curious, so I had this sort of building concern over time.”
‘PAYASOS’
Mr DeVincenzi said that after the May 12 search warrants, the Attorney General had felt “betrayed” and “aggrieved” that police had taken that step because of the assurance he felt he had been given by Mr McGrail in the April 7 meeting.
Mr DeVincenzi was at the April meeting but had only an “indistinct” recollection of it.
He told the Inquiry he had no specific recollection of Mr McGrail giving such an assurance, though he accepted the language may have been wide enough to give that impression.
“The Commissioner certainly had made some kind of undertaking to keep the AG informed…[and]…the wording may have been wide enough to be interpreted as something more than just an update,” he said.
“The impression I took from it was that it was a firm commitment to update, to keep the AG informed.”
“It may have been more, but I don't recollect it that way.”
Mr DeVincenzi said the discussion in the meeting had centred on “pruning” a long list of charges initially prepared by the RGP for the three suspects arrested at that time, and on questions relating to ownership of the security system.
He said he recalled the Attorney General saying the charges and the conduct of the investigation was a matter for the RGP, and that his impression of the meeting was that the RGP was at liberty to proceed as it wished in continuing the investigation.
Mr DeVincenzi was asked by Mr Santos whether he had been surprised to learn that the RGP had later sought to execute search warrants on May 12.
“No, not especially,” he replied.
“Did you believe that Mr McGrail had broken an agreement reached at the first meeting [in April]?” Mr Santos asked.
“No,” Mr DeVincenzi replied.
He recalled that Mr Llamas “took a dim view” of the police investigators, even describing them as “payasos”, or clowns.
But he was adamant that he did not believe the Attorney General had acted improperly or pressured police.
Questioned by Sir Peter Caruana, KC, the lawyer for the Government parties – the Chief Minister, the then interim Governor and the Attorney General – Mr DeVincenzi said he had enjoyed working with Mr Llamas, who was “a good lawyer” and a “decent and honest” person.
“Did you get any sense that the Attorney General was trying to curtail the RGP's freedom of action in their investigations,” Sir Peter Caruana asked.
“No,” Mr DeVincenzi replied.
“Did you get the impression that he was pressurising or cajoling or somehow abusing the status of his office?” Sir Peter Caruana asked.
“No,” Mr DeVincenzi replied, though he noted that Mr Llamas had at times seemed to him “too deferential to Mr Levy”.
Sir Peter Caruana pressed him on this: “Did he leave you the impression that he was driven by improper motives?”
“No,” came the reply.
The Inquiry continues.