26th June 2024
The last day of the McGrail Inquiry heard starkly opposed conclusions from lawyers representing former police Commissioner Ian McGrail and those for the Government parties.
For the former, the Inquiry had uncovered incontrovertible evidence of corruption at the highest level of government in a sequence of events that had destroyed the career of a long-serving police officer with an unblemished record.
For the latter, the Inquiry had shown that allegations of corruption and interference in a police operation were “wild and irresponsible” and that Mr McGrail had retired because of a genuine loss of confidence in him by the then interim Governor and the Chief Minister.
The closing submissions brought to an end the public hearing of the McGrail Inquiry, which was tasked with looking into the reasons and circumstances leading to Mr McGrail’s early retirement in June 2020, after a 36-year career and halfway through his term in the top post at the Royal Gibraltar Police.
On Wednesday, Inquiry chairman Sir Peter Openshaw, a retired UK High Court judge, said he had already started writing his report and aimed to have a first draft ready by early autumn.
But he indicated too that it will take some time beyond that before the report is published and that other steps must be completed first.
Once the first draft is reviewed by the Inquiry’s legal team “for accuracy and completeness”, any person or body facing “significant criticism” in the report will be allowed to make further representations.
The chairman will then make any amendments he considers appropriate.
“To undertake that process thoroughly and fairly necessarily takes a good deal of time and it will be unwise to estimate when that will be finished,” Sir Peter Openshaw said.
Once the report is finalised, it will be sent to the Gibraltar Government whose “duty” it will be to publish it in full, subject only to narrow restrictions set out in law.
“They can't therefore edit out the bits of the report of which they disapprove or do not agree,” Sir Peter Openshaw said.
The chairman thanked all the participants in the Inquiry process, which he said had enjoyed “strong public engagement as a result of the live streaming and catch-up facility provided by the GBC and the detailed daily reporting of the Inquiry’s proceedings in the Gibraltar Chronicle”.
ADAM WAGNER
First up in the final session on Wednesday was Adam Wagner, the lead lawyer for Mr McGrail.
The bulk of Mr Wagner’s submissions focused on events around the RGP’s decision to attempt to execute search warrants on May 12, 2020, on James Levy, KC, the senior partner at Hassans and a mentor to the Chief Minister, who is also a sabbatical partner of the law firm.
The warrants related to Operation Delhi, an 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.
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 both Mr Levy and Mr Picardo, as partners of Hassans, stood to gain financially from the alleged fraud.
At the time of the search warrants Mr Levy was a suspect in the investigation, though he was never arrested or charged.
In his closing statement, Mr Wagner said the Chief Minister did “everything within, and sometimes without” his power to stop Mr Levy from being investigated and to oust Mr McGrail from office.
He said the Chief Minister was “aided” by the Attorney General, Michael Llamas, KC, the then interim Governor Nick Pyle and the chairman of the Gibraltar Police Authority, Dr Joseph Britto, who for different reasons failed to take the necessary steps to ensure red lines on conflicts of interest were not crossed.
Mr Wagner was blunt in his assessment as he appealed to the Inquiry chairman, Sir Peter Openshaw, to make robust findings and recommendations in his report to address what he termed as “corruption”.
“When a politician uses their power to undermine a police investigation into their close friend, that's corruption,” Mr Wagner said.
“When the leader of the police force is hounded from office because the police investigated a powerful individual who is a close friend of a political leader, that is corruption.”
“When witnesses are given financial incentives by a politician as part of giving critical evidence which helps that politician, that is corruption.”
“What happens next, sir, will determine whether that corruption is allowed to fester again.”
Mr Wagner said Mr Picardo had “pulled out every stop” to protect Mr Levy, even sharing with Mr Levy and his lawyers confidential information about the warrants received from the Attorney General.
It was “improper and absurd” for Mr Picardo to have suggested that he had the right to share that confidential information, he added.
“Mr Picardo's theory demonstrates…Mr Picardo does not understand the core responsibilities of public office,” Mr Wagner said.
“Or he knows them very well but chose to ignore them.”
Sir Peter Openshaw, he added, was entitled to conclude that the Chief Minister’s position was “so absurd that it's likely to be a lie”.
The interim Governor, the Attorney General and the GPA chairman should have acted as “institutional guardrails” to prevent the Chief Minister from “doing what he did”, the Inquiry was told.
“Each in their own way, failed to be those guardrails, whether deliberately, inadvertently or recklessly,” Mr Wagner said.
“The guardrails were left broken, as was Ian McGrail.”
“He was treated disgracefully by senior lawyers and officials.”
“The process he was subjected to was both a shambles and a sham.”
“He had his good name dragged through the mud over and over again, and it continues to this day.”
Mr Wagner said witnesses in oral hearings had expressed their “discomfort and shock” at the way the Chief Minister behaved, though in most cases it was the first time in four years that they had done so.
“Better late than never,” he added.
He noted that the former Solicitor General, Lloyd DeVincenzi, had been the only government lawyer to raise the alarm at the time.
“Unfortunately, nobody listened to him,” Mr Wagner said.
And he said that in oral evidence, key witnesses had acknowledged that the way Mr McGrail was treated was a breach of natural justice, and that the only witness left defending Mr Picardo was Mr Picardo himself.
He recalled the Chief Minister’s angry reaction in a meeting with Mr McGrail and Mr Llamas on learning of the warrants – “distorted face and flared nostrils” – and said it was ironic that the Attorney General had described Mr McGrail in evidence as “a bull in a china shop”.
“Because the fact that we say is unavoidable from the evidence is that the bull in the china shop was Fabian Picardo,” Mr Wagner added.
“The Attorney General, the Governor, the chair of the Gibraltar Police Authority should have been the matadors, standing up for the rule of law against the bull who was trying to charge through it.”
“But instead of red cloths, they held up white flags.”
Mr Picardo, the lawyer said, was a “consummate politician” with undoubted oratory skills.
“He's hardly the first political leader with a gift for the gab and a worrying tendency to protect his friends at the expense of the public interest,” Mr Wagner told the Inquiry.
“But that is what the Constitution is meant to protect against.”
“That is why Gibraltar has the guardrails, the red lines.”
Mr Wagner highlighted a “black hole” in evidence before the Inquiry that included messages between Mr Picardo and Mr Levy, and the lack of written records of meetings and conversations between them after May 12.
And he dismissed Mr Picardo’s position that his primary concern had been to protect the jurisdiction from reputational damage.
“We submit this excuse is really an attempt by Mr Picardo to give himself license to circumvent constitutional red lines, and the license was only for one investigation,” Mr Wagner said.
And he later added: “We say Mr Picardo's fatal flaw was being unable to separate his, Mr Levy’s and his firm’s interests from those of Gibraltar, and it's a complete nonsense that he would have acted the same or has acted the same with any other prominent lawyers.”
“Mr Levy got the Chief Minister's gold-plated protection package reserved for him alone.”
Elsewhere in his closing address, Mr Wagner dismissed evidence from Mr Pyle that the central reason for his loss of confidence in Mr McGrail related to the fatal collision at sea in March 2020.
Mr Pyle believes Mr McGrail withheld from him timely information he had already shared with others on the location of the collision in Spanish waters, in which two Spanish nationals died when their speedboat was hit by a police vessel during a nighttime chase.
But Mr Wagner said this was down to a misunderstanding over the word “incident” – for Mr Pyle it meant the collision, whereas for Mr McGrail it meant the collision and the preceding chase – and that Mr Pyle had never raised his concerns until after he was approached by Mr Picardo two days after the RGP attempted to execute the search warrants at Hassans.
There was “no evasion, no misleading”, Mr Wagner told the Inquiry, adding there had been “an unseemly rush for judgement” by Mr Pyle and that the collision was being used “as a peg on which to hang Mr McGrail”.
The former Commissioner, he added, had always invited external scrutiny of the RGP, including commissioning an independent investigation by the Metropolitan Police into the collision at sea.
On the flawed GPA process inviting Mr McGrail to retire, Mr Wagner said “it should have been blindingly obvious” that “basic principles of fairness” were not being followed.
And he added: “Mr Pyle and Mr Picardo placed enormous and intolerable pressure on Mr McGrail.”
“That pressure was so much that it caused a breach of natural justice in and of itself, and left Mr McGrail with no choice but to fall on his sword.”
Mr Wagner said his client was to this day being subjected to “a campaign of persecution”, some of it “government sponsored”.
He referred to Government press releases as recently as this week in which the Government had made statements about evidence heard by the Inquiry relating to Mr McGrail that were “not true”.
He mentioned too “vicious and defamatory” articles “systematically” published by the New People, a newspaper whose ultimate beneficial owner was Mr Picardo and whose shares were held by “a web of companies” that led to Mr Picardo and Hassans.
Those articles attacked Mr McGrail and others “who punctured the Government’s narrative”, while other articles appeared to back the Government position.
Mr Wagner, whose detailed closing submissions are published in full on the Inquiry website alongside those of other lawyers, proposed four recommendations he hoped Sir Peter Openshaw would take on board in writing his report.
He proposed a Conflict of Interest Act modelled on Canadian legislation to give a legal footing to rules on conflicts of interest.
He proposed too training and protocols for the Attorney General to assist in dealing with conflicts of interest, and training and protocols for people serving on the GPA.
Lastly, he called for “some kind of redress” for Mr McGrail, “an honest man and a dedicated public servant who has been treated disgracefully”.
That redress should be independently administered, he added.
SIR PETER CARUANA KC
Next up was Sir Peter Caruana, KC, the lawyer representing the Government parties, namely Mr Picardo, Mr Pyle and Mr Llamas.
Sir Peter Caruana said the process that led to the Chief Minister and interim Governor losing confidence in Mr McGrail as Commissioner had been “incremental” until the issues accumulated and “caused the proverbial glass to overflow”.
In the case of Mr Pyle, the tipping point was the fatal collision at sea and his belief that Mr McGrail withheld from him timely information on the location of the incident that he had nonetheless shared with the Chief Minister and the Attorney General.
In the case of the Chief Minister, it was his belief that Mr McGrail had lied to him over the warrants in a meeting on May 12, 2020.
“These were the immediate catalysts for their decision,” Sir Peter Caruana said.
“The other loss-of-confidence issues were matters, some very historical, that were brought to mind by them and contributed in different measure, if at all…to the final joint assessment in May 2020 that each of them had lost confidence in him, [and] that taking into account also the more historical matters, the threshold for action had been reached, leading them to their joint decision to seek his removal by the Gibraltar Police Authority.”
Sir Peter Caruana said the fact that neither the interim Governor or the Chief Minister had previously raised concerns about historical matters such as the airport incident or the HMICFRS report made them “no less true or genuine”.
He said the two men were entitled to lose confidence in the Commissioner and bring that loss of confidence to the Gibraltar Police Authority, “and that is what they did”.
Sir Peter Caruana dismissed the suggestion that the GPA chairman had been manipulated or pressured by the Chief Minister or Mr Pyle, reminding the Inquiry that the decision had been taken unanimously by Authority members.
The GPA “…decided collectively and unanimously, without further intervention of the Governor or the Chief Minister, to invite Mr McGrail to retire, and it did so principally because they took the view that having lost the confidence of both the Governor and the Chief Minister, his position had become untenable.”
Sir Peter Caruana said that while the GPA did not consider in detail the reasons put forward by Mr Picardo and Mr Pyle for their loss of confidence, it had acknowledged “a practical reality” that such a loss of confidence would impact the efficiency and effectiveness of policing in Gibraltar.
The GPA later withdrew its invitation to Mr McGrail after his lawyers pointed out procedural flaws which the Authority accepted, including a failure to provide detail of the allegations against Mr McGrail and afford him a chance to respond.
But Sir Peter Caruana said it was “wholly phoney and unwarranted” to blame either the interim Governor or the Chief Minister for those flaws.
Mr Pyle had been ready to consider using powers to ask Mr McGrail to step down but before that happened, the former Commissioner took early retirement, he says because of unbearable pressure.
“The real reasons why Mr McGrail sought early retirement was that he knew that he had lost the confidence of both the Governor and the Chief Minister and that, in consequence of that, the GPA thought that his position was untenable,” Sir Peter Caruana said, adding it had nothing to do with allegations of interference in Operation Delhi.
He dismissed too claims that Mr Pyle had been “an unwitting instrument” of the Chief Minister, adding that “whatever may have been the coincidence of their objectives”, the interim Governor acted with Foreign Office advice “in a manner that reflected his own views”.
“All of this apparently is lending himself to being manipulated by the Gibraltarian Chief Minister in full view of the Foreign Office in London, the same Foreign Office that has the constitutional responsibility for ensuring good governance in Gibraltar,” Sir Peter Cauana said of Mr McGrail’s allegations.
“With the greatest of respect, to anyone who understands the dynamics of the relationship between the Foreign Office and the Government of Gibraltar, it's not a plausible narrative.”
Sir Peter Caruana also firmly rejected allegations of interference in Operation Delhi and corruption.
“It is a wild and irresponsible allegation unsupported by evidence and sustained only by the speculative innuendo and hyperbole used to construct [Mr McGrail’s] own self-serving case narrative,” he said.
He said it was “implausible” to suggest the Chief Minister had intervened in the police operation to protect his financial interest, given Mr Picardo had taken steps to ensure the contract remained with Bland some 18 months before the issue with the Hassans search warrants.
The RGP had been free to proceed as it wished with Operation Delhi and did so, Sir Peter Caruana said, adding that the investigation was in any event not led by Mr McGrail.
While the Chief Minister had been critical of the RGP’s handling of Operation Delhi, he had a right to express that criticism and this did not amount to interference, either by him or other key office holders such as the Attorney General and the Director of Public Prosecutions.
“Nothing that amounts to interference, still less improper interference, was done by any of them,” Sir Peter Caruana said.
And he later added: “Mr McGrail appears not to distinguish between interference in a police investigation and criticism of police decision and actions.”
“He wrongly equates them both and appears to have a misplaced sense of police immunity from criticism and comment about their decisions and actions.”
Mr Picardo “…was entitled to that critical view and to express it forcibly and privately to the Commissioner of Police, whether as Chief Minister or not, and regardless of the merit of the view.”
Sir Peter Caruana said Mr Picardo was also entitled to communicate with Mr Levy and his lawyers “and did so frequently”.
“He was equally free - and why this should be thought to be an interference with the investigation, I don't know - to adopt a supportive and sympathetic position towards a suspect, not least if that the suspect is his friend,” he added.
“People are innocent until proven guilty, and the fact that somebody is merely a suspect under investigation does not require him to be put in Coventry, even by the Chief Minister.”
Sir Peter Caruana said the Attorney General had given evidence that he was satisfied the Chief Minister “did not cross any line of legal propriety”.
And he said too that Mr De Vincenzi, the former Solicitor General who had been praised by other lawyers as the only person to signal potential conflicts of interest at the time of the events, had also said in evidence he did not believe the Attorney General had acted improperly in any way.
He urged Sir Peter Openshaw to take a holistic view of the evidence and claims before the Inquiry.
“I would urge you just to step back and, however unusual you think the governance in Gibraltar might be, is it really likely that all of these people would have engaged in this unlawful activity for the purposes and in the manner that Mr McGrail requires it to mean to justify his decision to opt for early retirement, which he says he did - even though it's clearly not the case on the evidence - because of this interference by all these important people?” Sir Peter Caruana asked.
“I say, sir, that if you take a holistic view, it is not plausible that that should be so.”
Elsewhere, Sir Peter noted that the new Inquiries Act, despite the controversy around it ahead of the public hearing, had not shackled the Inquiry as many had feared.
“There has been no curtailment of the Inquiry's ability to investigate anything it has wanted to investigate, and the domestically and internationally damaging comment and criticism levelled against these measures have therefore proved to be entirely unwarranted and unjustified,” he said.
He also urged caution on the calls for recommendations made by some of the other lawyers.
“The Government parties do not accept the basis of the somewhat exaggerated refrains on which these submissions are based, namely, that there has been an assault on or violation of the RGP's operational independence and still less of the rule of law, and that without bold, courageous and ambitious recommendations from yourself, the operational independence of the RGP and the rule of law in Gibraltar is not assured in the future,” Sir Peter Caruana said.
“None of which should be thought to mean that valuable lessons cannot be learnt and valuable recommendations cannot emerge from this inquiry. They can and no doubt will.”
Sir Peter Caruana reminded the Inquiry chairman that it had been the Chief Minister who decided to convene the Inquiry, even if Mr McGrail “may want to take credit” for calling for it.
“And having no obligation to have called this Inquiry, would [the Chief Minister] have done so with such broad terms of reference, or at all, and appoint an experienced criminal judge such as yourself to conduct the Inquiry if he had behaved corruptly, as Mr McGrail alleges, and had not, in fact, been lied to by Mr McGrail, upon which he based the very decision that he appointed you to inquire into?” he asked.
“These are not the actions of somebody who thinks he has anything improper to hide.”