The McGrail Inquiry on Tuesday heard two very different views on the Royal Gibraltar Police’s handling of 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.
One view said this had been a thorough police investigation that had followed evidence leading to influential people before the criminal case was discontinued by the Attorney General, Michael Llamas, KC, on public interest grounds involving national security.
The other, that Operation Delhi had been an “irregular and unfair investigation” from the outset that caused “real suffering” to people caught up in it and was based on “a fiction”.
The starkly contrasting assessments were served up during opening submissions by Patrick Gibbs, KC, the lawyer representing former police Superintendent Paul Richardson who at one point led the Operation Delhi investigation, and by Ben Cooper, KC, the lawyer representing three men who were charged in the investigation and who the Inquiry refers to collectively as the “Operation Delhi defendants”.
‘MOST POWERFUL LAWYER’
Mr Gibbs told the Inquiry that Mr Richardson and his officers had done their best to gather evidence and investigate an alleged fraud involving the sabotage of “a lucrative Government contract” for financial advantage.
He said after initial investigations led to arrests, further evidence was produced that pointed “to the most powerful lawyer in the most powerful law firm in a territory run by lawyers”, Hassans’ senior partner James Levy, KC.
“And, worse than that, to a suspicion which could not simply be ignored, that that eminent person had become complicit in a serious criminal offence, which is a tricky situation to find yourself in as a police officer,” Mr Gibbs told the Inquiry.
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 his client could have treated Mr Levy differently to everyone else or “bowed to the dangers and turned a blind eye”.
But the Director of Public Prosecutions, Christian Rocca, KC, had supported Mr Richardson’s conclusions on the available evidence and police investigators stuck to the principle that no one in Gibraltar was above the law, the Inquiry heard.
Mr Gibbs said the evidence had supported the RGP’s decision to handle the investigation the way it did, including seeking on May 12, 2020, to execute search warrants at Mr Levy’s office and residence, warrants granted by the Stipendiary Magistrate after a hearing lasting nearly two hours.
Mr Gibbs told the Inquiry that the RGP’s duty was to follow the evidence and establish whether its suspicions were well founded or not, but that only inspection of Mr Levy’s mobile phone could have confirmed it one way or another.
The reactions to those search warrants, including a subsequent meeting at which the Chief Minister “dressed down” former police Commissioner Ian McGrail, are a key issue being examined by the Inquiry.
Mr Gibbs said that when Sir Peter Openshaw studied in detail the exchanges between the RGP and Hassans after May 12, he “may be driven to the conclusion” that the RGP was “cajoled and pressurised” out of obtaining the evidence it was after.
And he added that while the Inquiry had obtained much relevant evidence relating to this period, there were gaps.
He noted for example that it was “certainly frustrating” that Mr Levy and Mr Picardo had made no notes about any of the conversations they had about this “highly contentious” legal issue.
He said it was frustrating too that Mr Picardo had been able to recover his WhatsApp messages to and from everyone else, but not those with Mr Levy.
Mr Gibbs noted too that Lewis Baglietto, KC, a Hassans partner who had been instructed on behalf of Mr Levy at the time, had written little down and “can remember nothing – little- about the meetings and the conversations which he took part in”.
“Anyway, you’ll decide what to make of all of that,” Mr Gibbs told the chairman.
But he added that “no one will ever know” what was on Mr Levy’s telephone.
“Because when the shouting and the politicking and the horse trading was over, Mr Levy had not been interviewed, his mobile telephone had not been examined and it had been returned, the warrant had expired without being executed, and he and his telephone retreated into the shadows,” Mr Gibbs said.
Mr Gibbs was critical too of the Government’s decision to issue a restriction notice in respect of certain information relating to the NSCIS, some of which is contained in WhatsApp messages between Mr Levy and Thomas Cornelio, one of the Operation Delhi defendants.
The Government had cited the national interest as the basis for its decision, and Sir Peter Openshaw on Monday said the notice would not impact the Inquiry’s ability to “properly proceed”.
But the issue is contentious.
“I know what they say, you know what they say, but our lips are sealed,” Mr Gibbs told the chairman.
“To state the obvious, you do not need to be a lawyer to know that there is all the difference in the world between personal or political embarrassment on the one hand, and the national interest on the other, particularly in an Inquiry which has personal and political embarrassment at its heart.”
‘FICTION’
Ben Cooper, KC, the lawyer representing the Operation Delhi defendants – Thomas Cornelio, John Perez and Caine Sanchez – took a sharply contrasting view of Operation Delhi.
He said the investigation had been initiated by Mr McGrail following a meeting with Bland chairman James Gaggero in September 2018 but that nothing was done until late December that year, despite the Inquiry being told the alleged fraud was affecting national security.
And he claimed too that Mr Gaggero had initially supported the transition of the maintenance of the NSCIS from Bland to 36 North but had then gone cold on the idea.
Mr Cooper said the police investigation was “tainted right from the very start” because it was premised on “a clear commercial grievance that was dressed up into a crime against the State”.
“We cannot say for certain whether this was because Mr McGrail had some private or political motivation for doing as he did, whether it was from an actual tendency to turn a drama into a crisis, or whether he was simply too weak or too credulous not to follow Mr James Gaggero’s lead,” Mr Cooper said.
“Yes, the investigation was tainted but the taint did not arise from political interference in May 2020, but through a sequence of odd decisions in commencing and progressing and persevering with an investigation in the face of developments that should have triggered a comprehensive reassessment.”
Mr Cooper said the police investigation had consistently failed to pursue “reasonable” lines of enquiry, some of which were favourable to the Operation Delhi defendants.
He raised questions, for example, about the ownership of the proprietary interest in the NSCIS, adding that despite references to a contract for its maintenance, the only contractual relationship between Bland and the Government was an implied one on the basis of work being done.
He said the absence of a contract meant the Government was entitled to take its custom from Bland to another company if it wished to, adding the RGP should have taken this into account when investigating the alleged fraud.
“To put things in layman's terms, Mr Gaggero went to Mr Ian McGrail and told him that Mr Cornelio [and] Mr Perez were trying to take something that belonged to him, or, rather, Bland,” Mr Cooper said.
“Mr McGrail, it seems, applied no effective scrutiny to this account but simply accepted it.”
“It later emerged that there was a significant dispute about whether this thing that Mr Gaggero had said belonged to Bland actually did belong to him or belonged to the Government of Gibraltar in fact.”
“Any competent police investigation acting independently without ulterior intent would have recognised that this was a highly material change in circumstances.”
Mr Cooper said it was “not sustainable” to assert that it was inappropriate conduct for the Government, the Chief Minister or civil servants like Mr Sanchez – who was responsible for the NSCIS - to consider such a change.
“That would be a good point if the NSCIS belonged to Bland,” he said.
“But when assessing ownership, there is a big clue in the name of the product, the National Security Central Intelligence System.”
“Once it is recognised that it belongs to the Government, the point Mr McGrail seeks to make is not sustainable.”
“If the Government believed that Mr Cornelio and Mr Perez would provide a better service than Bland, there is nothing wrong in encouraging them to move.”
“They are entitled to choose who they work for and to ensure that the conditions of their work are suitable and match the skills that they possess.”
Mr Cooper told the Inquiry that what emerged from the RGP investigation was “a fiction” that kept his clients “embroiled” in criminal proceedings for many months.
Referring to Mr Levy, Mr Cooper said the Hassans senior partner had not remained under suspicion after the events of May 2020.
“This may have been the private view of some of the officers but it was certainly not the official stance of the RGP because they made efforts to persuade Mr Levy to be a prosecution witness,” he said.
“Police forces do not issue certificates of innocence but an invitation to appear as a prosecution witness is probably the closest one can expect to get.”
Mr Cooper highlighted too the “human cost” on his clients.
Addressing Sir Peter Openshaw, he said: “I trust that you will bear in mind, Sir, when conducting this Inquiry and writing your report, that the disputes amongst powerful local interests, businessmen, professional politicians and State office holders that occupy most of the evidence, have had serious effects beyond this class of person.”
He said his clients had faced that pressure since their arrests in May 2019.
“All three are men of impeccable good character, with a history of hard work and service to Gibraltar in the Royal Gibraltar Regiment, in the Civil Service and through the skilful authorship of a suite of software that has helped to keep Gibraltar safe for many years, and they deserve credit for all of that,” he said.
“They, and their young families, have had to live with being the subject of public discussion and unjustified rumour for what will be five years next month.”
Mr Cooper added that the “unusual manner” that the criminal case against them had been discontinued “left a sense of basic unfairness about their lack of complete vindication and full exoneration”.
He noted too that much of the evidence consisted of accusations of misconduct against his clients or presumed wrongdoing simply because they had been charged.
“But these accusations went nowhere,” he told the Inquiry, adding the Operation Delhi defendants had fully denied the allegations against them.
“Nothing was established as alleged.”
It was not the role of the McGrail Inquiry to revisit the merits of those allegations, he added.
‘INELEGANT’
On Tuesday, the Inquiry also heard from Nick Cruz, the lawyer representing the RGP.
Mr Cruz reflected on some of the key issues in the Inquiry, describing as “irrelevant” the runway incident and the assault on the RAF helicopter pilot, and defending the RGP’s actions in both those cases.
On the fatal collision in Spanish waters, another of the central issues in the Inquiry, he countered claims by Nick Pyle, the interim Governor at the time of Mr McGrail’s early retirement, that Mr McGrail had deliberately withheld information about the location of the incident, adding the RGP acted correctly at all times “including giving timely reports”.
Mr Cruz centred a large section of his submissions on the Operation Delhi investigation.
On Monday, Julian Santos, counsel for the Inquiry, had submitted that the RGP’s reasons for opting for search warrants instead of a less intrusive production order were “unsatisfactory and generic”.
But Mr Cruz countered that what mattered was the investigators’ mindset at the time and their “granular knowledge” of the ongoing investigation, adding it was neither “relevant nor appropriate” for the Inquiry to “get under the skin of those issues”.
He noted that Mr Levy had not challenged the warrants in court.
“They didn’t challenge it so it’s not appropriate for us to examine this,” he said.
Mr Cruz stressed that the RGP had always acted “professionally and correctly”, in line not just with the law but with its code of ethics and the Nolan principles of standards in public service.
The RGP, he said, was “honest, impartial, transparent and accountable”, seeking the truth “wherever that falls and whatever the consequences”.
Mr Cruz also made submissions about oversight of the RGP, which he said was down to the Gibraltar Police Authority [GPA] under the constitution.
The Inquiry had previously heard that Mr McGrail was invited by the GPA to retire after learning that Mr Pyle, the interim Governor at the time, and the Chief Minister had both lost confidence in him, and that Mr Pyle would otherwise consider using default powers in legislation to ask him to step down.
But Mr Cruz said Mr Pyle and the Chief Minister had “confused and muddled” their roles.
Mr Cruz said the GPA could terminate a police Commissioner’s appointment only after a “non-rushed, due process”, and not “at the whim” of a Governor or a Government, and that the Governor’s removal powers in default were very specific and defined.
“Whether they’ve done it intentionally or inadvertently, with pure motives or not as Mr McGrail suggests, that’s a matter for you,” he told the Inquiry chairman.
“Both gentlemen, absent a default, simply could not exercise those powers or role that they exercised or threatened to exercise or set about exercising.”
He said it was “quite astonishing” that Mr Pyle had wrongly assumed he could “proxify” the GPA’s role by signalling that “if they didn’t deliver”, he would consider using his default powers.
That was an “inelegant, hasty, inappropriate approach [that] reeks of colonialism” and was constitutionally flawed, he said.
At the heart of the Inquiry was the rule of law and the protection of its guardians, including the RGP.
“There can’t be a softening of those safeguards,” Mr Cruz added.
“There can’t be blurring of those roles and responsibilities.”
‘UNTENABLE’
The Inquiry also heard from James Neish, KC, the lawyer representing the Gibraltar Police Authority.
Mr Neish said the GPA “took at face value” the position expressed by Mr Pyle and Mr Picardo that they had lost confidence in Mr McGrail.
It had invited Mr McGrail to retire because it was aware that if it did not, the Governor would consider exercising his powers to ask the Commissioner to step down.
The GPA concluded that asking him to take early retirement was the “better and gentler” of the two options.
“One way or another, Mr McGrail would not remain in office given the loss of confidence,” Mr Neish said.
“Mr McGrail’s position had become untenable.”
Mr Neish said the GPA had been faced with a “crisis situation”.
Once it was aware of that loss of confidence, it was rational that the GPA would be concerned about a knock-on impact on the efficiency of the force, something that came under its oversight remit.
“The GPA cannot ask the Governor or the Chief Minister to retire,” he said.
“It can ask the Commissioner to retire.”
Mr Neish said that the collision at sea and its impact on how the Governor and the Chief Minister viewed Mr McGrail had been a key factor in its assessment of the situation.
After it wrote to Mr McGrail inviting him to retire, the GPA had received a reply from Charles Gomez, his lawyer, pointing to procedural flaws in how it had dealt with the matter, something the GPA later acknowledged.
The letter was withdrawn but Mr Gomez replied and told the GPA that “…given how unfairly [Mr McGrail] has been treated and the improper pressure put upon him to alter the course of a live criminal investigation, our client feels that he must apply for early retirement from the Royal Gibraltar Police.”
The GPA “strongly denies” that Operation Delhi in any way influenced its decisions, the Inquiry was told.
The inquiry continues.