Dr Joey Britto, the chairman of the Gibraltar Police Authority, accepted in hindsight on Friday that the GPA should have taken different steps on learning in 2020 that the then interim Governor, Nick Pyle, and Chief Minister Fabian Picardo had lost confidence in Ian McGrail as Commissioner of Police.
In evidence to the McGrail Inquiry, Dr Britto acknowledged that the GPA should have taken legal advice from the outset and adopted a more sceptical approach to ensure independence and due process before inviting Mr McGrail to take early retirement, having been invited to by the Governor and the Chief Minister.
Over the course of a full day’s session, Dr Britto was quizzed relentlessly about the GPA’s actions and whether the process it followed in asking Mr McGrail to retire had been in line with the Authority’s constitutional role and obligations.
Mr McGrail’s lawyers have alleged that the former Commissioner was “muscled out” of his job as a result of relentless pressure triggered by the RGP’s decision on May 12 to attempt to execute search warrants at the office and home of James Levy, KC, a senior partner at Hassans who at the time was a suspect in Operation Delhi, though he was never arrested or charged.
They told the Inquiry Mr McGrail had been subjected to an “unfair, frankly shambolic and sham” process “stage managed” by the Chief Minister, a claim the Government parties firmly deny.
INDEPENDENCE
At the heart of much of the questioning was whether the GPA had acted independently in its decision to invite Mr McGrail to retire early late May, 2020.
In response to questions, Dr Britto described a meeting with the then interim Governor, Nick Pyle, and Chief Minister Fabian Picardo on May 18 in The Convent.
Dr Britto said both men were “very forceful” and “serious” as they informed him that they had lost confidence in Mr McGrail as Commissioner of Police and invited the GPA to exercise its power to ask him to retire early.
Dr Britto said Mr Pyle made clear that if the GPA did not take that step, he as Governor had the power in default to ask Mr McGrail to resign and would do so.
Prior to the May 18 meeting, the GPA chairman said neither Mr Pyle nor the Chief Minister had ever expressed any concerns about Mr McGrail.
Dr Britto, who at times was emotional and told the Inquiry he does not like conflict, said he was “shocked, surprised” by what he was told and felt overwhelmed by the situation.
“I didn’t know what had hit me,” he told the Inquiry, later adding: “They were giving me a choice, but not really.”
“I was left in no doubt that one way or another, it could happen,” Dr Britto said.
At a subsequent meeting on May 21, the GPA board members decided to act on the information from the Governor and the Chief Minister and issue Mr McGrail with a letter inviting him to retire.
The key issues considered by the GPA were the loss of confidence explained by the Governor and the Chief Minister, in particular arising from the fatal collision at sea – Mr Pyle claims Mr McGrail withheld timely information about the location of the incident in Spanish waters, something he denies – and concerns about Mr McGrail’s response to an audit of the RGP by UK police inspectors, the Inquiry heard.
Prior to his meeting with the Governor and the Chief Minister, Dr Britto had been told by Mr McGrail of the Chief Minister’s anger that the RGP had seized the Mr Levy’s telephone on May 12.
And at the May 18 meeting, Dr Britto said both Mr Pyle and Mr Picardo had said they had been misled by Mr McGrail, the latter in relation to the RGP seizing Mr Levy’s phone.
But the GPA had few details on Operation Delhi, which was not a factor in its decision to invite Mr McGrail to retire, the Inquiry heard.
“For us, the main thing was that they had both lost confidence in the Commissioner,” Dr Britto said, adding that it was the Governor’s views that were most prominent for the GPA given he had the power to ask the Commissioner to resign.
He said he trusted the Office of the Governor and the Chief Minister and believed what he had been told.
“How can I not trust them?” Dr Britto said.
He said the claims of interference were like “something from fiction” and he had been convinced it was all “a huge misunderstanding’.
Quizzed by Julian Santos, the lawyer for the Inquiry, on the extent that Operation Delhi figured in the deliberations at the time, Dr Britto said: “I didn’t join the dots. I’m not saying whether I should have or I shouldn’t, I really didn’t.”
Mr Santos also asked: “Is there not a danger that, if by purely saying that they had lost confidence in Mr McGrail, the Chief Minister and Governor, if by them saying that, you simply took it as a given that you needed to invite Mr McGrail to retire… effectively handing the decision over to them?”
“Yes, I accept that,” Dr Britto replied. “But it wasn't apparent to me then.”
Asked later by Nick Cruz, the lawyer for the RGP, whether the outcome might have been different had the GPA “known the facts” and acted independently as per its constitutional role, Dr Britto replied: “I'm not a fortune teller… I have no way of knowing that.”
He insisted the GPA had not failed the RGP in its approach.
“Would you accept that if you had a police force that was not controlled by a police authority, an independent police authority… or by a Governor, in a colonial sense, that there's always the possibility of abuse, political abuse, or some other type of abuse?” Mr Cruz asked.
“Yes, and conversely, there's always a possibility of abuse by the police, by having too much power,” Dr Britto replied.
“Indeed, and the Police Authority is the pivot or the anchor or the filter to ensure that neither the police abuse power, but that no one else can exert pressure on the police either, would you accept that?” Mr Cruz asked.
“I'm not certain why the Police Authority was constituted, but that's… in all probability one reason,” Dr Britto replied.
‘LEGAL ADVICE’
Dr Britto acknowledged that until the meeting with the Governor and the Chief Minister on May 18, he had been unaware of the GPA’s power to ask a Commissioner to retire early, or the process to be followed.
But he said the GPA did not take legal advice from the outset, something which he regretted, and that asking for early retirement seemed “better and gentler” than the Governor calling for the Commissioner’s resignation.
“With hindsight, the first thing I would have done is seek legal advice,” Dr Britto told the Inquiry.
After the GPA meeting at which the decision was taken to ask Mr McGrail to retire, Dr Britto drafted a letter setting out the Authority’s position.
Dr Britto said the letter had not been shared with other GPA members before it was sent to Mr McGrail, but acknowledged he had shared a draft with the Chief Minister and asked him for his feedback.
Dr Britto acknowledged too that changes made by the Chief Minister to the letter were substantive, to the point that the tone in parts reflected Mr Picardo’s voice, not his.
Questioned by Adam Wagner, Mr McGrail’s lawyer, Dr Britto accepted he had been guided through the process by the Chief Minister, but only after the GPA had taken its decision and “at my request”.
Dr Britto told the Inquiry he had thought that, even after the letter, Mr McGrail would have an opportunity to respond to the claims about the loss of confidence and that the decision might still be reversed.
But when the GPA received a response from Charles Gomez, Mr McGrail’s lawyer, and sought legal advice from James Neish, KC, he realised there had been flaws in the process followed by the Authority.
Mr Gomez’s letter pointed to procedural errors and made serious allegations against the Chief Minister and the Attorney General about interference in Operation Delhi.
The procedural errors arose because when the GPA convened on May 21 to decide whether to send the resignation invitation, four members had been unable to attend, meaning the meeting lacked the necessary quorum.
Dr Britto had telephoned the remaining four after the meeting and obtained their approval, but it was a fatal procedural flaw.
Additionally, the GPA had invited Mr McGrail to retire without first providing detailed reasons for the loss of confidence and, crucially, waiting for his response.
The upshot was that the GPA withdrew the letter inviting Mr McGrail to retire early and stepped back from the matter because of its initial handling of it.
The Inquiry continues, with the Chief Minister due to give evidence on Monday.