McGrail Inquiry sets new date for main hearing, explores ‘knotty issues’ around ‘nolle prosequi’
The McGrail Inquiry has set a new date for its full hearing, which is now scheduled to run over four weeks commencing on April 8 in 2024.
The full hearing had initially been scheduled to start last month but was postponed over concerns it could prejudice an ongoing police investigation into allegations that some witnesses may have received incentives to provide evidence.
Julian Santos, counsel to the Inquiry, said the April start date was “achievable” given the progress made to date in preparing for the main hearing.
“Although, obviously, I have to say that that is still subject to any updates from the RGP as to the progress of that criminal investigation, which gave rise to the postponement in the first place,” he added.
Sir Peter Openshaw, the retired UK judge chairing the Inquiry, had previously underlined the importance of proceeding to the full hearing as soon as possible given the public interest in the Inquiry.
“We cannot put the inquiry off forever because of ongoing criminal investigations,” he said on Wednesday.
“I have put them off in March. That was plenty of time.”
The new date was announced during the fifth preliminary hearing of the Inquiry in the Garrison Library.
The Inquiry is tasked with probing the reasons and circumstances leading to the controversial early retirement in June 2020 of former police Commissioner Ian McGrail, after a 36-year career and halfway through his term in the top post at the Royal Gibraltar Police.
In earlier sessions, Mr McGrail’s lawyers alleged “misconduct and corruption” at the highest levels of government, insisting Mr McGrail was “muscled out” after being placed under huge pressure over the conduct of a live criminal investigation.
Those allegations were “denied and roundly rejected” at the time by Sir Peter Caruana, the lawyer for the government parties, who said Mr McGrail retired because he knew he had lost the confidence not just of the Chief Minister but, crucially, of the then Governor, who was the only person with the power to ask him to resign.
Among the list of issues that the Inquiry will investigate is the RGP’s handling of the investigation into the alleged “hacking and/or sabotage” of the National Security Centralised Intelligence System and an alleged conspiracy to defraud Bland, the company that operated it.
A central theme in the submissions yesterday related to the decision by Attorney General Michael Llamas, KC, in January 2022 to enter a nolle prosequi that discontinued the prosecution arising from that investigation.
In explaining his decision at the time, Mr Llamas said he had taken the step because of “matters in the wider public interest”, adding that to explain his reasoning in any further detail would defeat the decision to discontinue the case.
On Wednesday, the questions before the Inquiry included whether it was relevant to the Inquiry to know what the Attorney General’s reasons were and whether this was within the scope of its mandate.
Lawyers also explored whether the law allowed the Attorney General to keep the reasons private in the public interest and, if so, whether Sir Peter Openshaw was entitled to draw inferences, in reaching his conclusions, if those reasons were not aired.
Those questions, the Inquiry chairman said, raised “knotty problems” that needed to be addressed ahead of the main hearing next year.
The exchanges were dense and focused largely on the law underpinning the Attorney General’s decision, as well as its relevance to the Inquiry’s work.
Sir Peter Openshaw said lawyers for Mr McGrail were arguing that the Chief Minister “…triggered and then directed the events which forced Mr McGrail to take early retirement”, and that he was “potentially implicated” in the investigation into the alleged conspiracy. Lawyers for the Chief Minister have robustly denied those allegations.
Addressing Adam Wagner, one of Mr McGrail’s lawyers, Sir Peter Openshaw added: “Therefore, it is your case that the Chief Minister's motive in removing Mr McGrail was to protect him, the Chief Minister, from personal and political danger presented to him and to his government.”
“And you allege that the Attorney General played, as you put it, ‘a key enabling role and was at all material times acting under the instruction of the Chief Minister’.”
“Therefore, you submit that if the real reasons for discontinuing the prosecution were to protect the political reputation of the Chief Minister and the government from the fall out of the impending trial, and if the Chief Minister and the Attorney General were driven by the same motives in discontinuing the trial as they had been in engineering his retirement, then the one is plainly relevant to the other.”
Mr Wagner, who attended the hearing remotely from London, agreed with the chairman’s summary of Mr McGrail’s position and reiterated that there was a “possibility, and I do not put it more than that, that these are very relevant issues to this inquiry”.
Sir Peter Caruana, the lawyer for the government parties including the Chief Minister, the Attorney General and Nick Pyle, the interim Governor at the time of Mr McGrail’s early retirement, said the suggestion that the Attorney General had acted improperly was “obviously denied”.
But even if the Attorney General had done what was claimed, he said, it was of no relevance to the work of the Inquiry in establishing why the Chief Minister and the then Governor lost confidence in the former Commissioner 12 months before the nolle prosequi was entered.
“It cannot just sound in an echoey room to be prejudicial,” Sir Peter Caruana said.
“It has to be forensically relevant of the issue under inquiry.”
And he added: “I suppose, sir, we could speculate about everything and if speculation and bold assertion are enough grounding foundation for relevance, then in theory, everything is in the scope of this inquiry, simply because somebody asserts it on the basis of their suspicion or, to quote Mr Wagner, ‘without putting it any higher than a possibility’.”
Sir Peter Caruana noted that neither the Chief Minister nor the Attorney General had “made any attempt” in the Inquiry to protect their respective roles from being probed in open sessions.
“Smoke and mirrors is not a proper basis for the establishment of relevance,” he said.
Sir Peter Caruana noted too that the Attorney General was willing to share “in full” his reasons for discontinuing the alleged conspiracy case with the Inquiry chairman and his legal team, “but not more widely”.
He said that evidence, if accepted, would be “more real than the speculative case to the contrary, which is no case at all.”
“There is at least some forensic relevance to that offer, which you, sir, can take up at any time, catching the Attorney General out at any moment of your choice, if Mr McGrail were right,” Sir Peter Caruana said.
“On the other side, all you have is unfounded speculation which is forensic of nothing except the motives of the bald asserter.”
The Inquiry heard submissions arguing that the Attorney General had the power in law to discontinue a prosecution and not have to give reasons for this in public.
But there was ample debate too as to whether that power was at odds with those of the Inquiry itself to properly fulfil its terms of reference and report accordingly.
Sir Peter Openshaw noted that if he accepted the Attorney General’s offer to provide the reasons for the nolle prosequi only to him and his legal team, it could limit his ability to reflect on them appropriately in his final report, especially if he questioned the veracity of the Attorney General’s evidence or the adequacy of his reasoning.
“Then that puts me in an extremely difficult position, does it not?” the Inquiry chairman said.
Sir Peter Caruana replied that, while it would be a precondition of the Attorney General sharing his reasoning that they remained private, that would not stop the Inquiry chairman from criticising him if he saw fit.
Sir Peter Openshaw would be “…free to criticise them as much as you want in your report, so long as that criticism does not include airing the reasons,” Sir Peter Caruana said.
Mr Wagner’s view, however, was that any limitation on the Inquiry’s powers to investigate an area in which public interest and confidentiality issues arose should be determined by Sir Peter Openshaw.
“It is ultimately your power to decide…not the Attorney General’s,” Mr Wagner said.
In his submissions, Sir Peter Caruana also noted that the Attorney General, in a sworn affidavit to the Inquiry, had said under oath that “…the reasons why I entered the nolle two years later, had nothing to do with protecting the office... My decision was based on matters that were brought to my attention over a year after the event of May and June".
Sir Peter Caruana acknowledged Mr Wagner’s position that no one’s evidence should simply be taken at face value because of who they are.
But he added: “I would submit that to treat the sworn evidence of a serving Attorney General with scepticism, without any evidence whatsoever to justify that scepticism, is wholly inappropriate and not a sufficient basis for the question.
Sir Peter Openshaw has yet to rule on how the Inquiry will address this issue.
The Inquiry will reconvene today to hear submissions in private on applications for restriction orders on aspects of the main hearing and the evidence it will consider.
LAWYERS
Mr McGrail is represented by Adam Wagner, Charles Gomez and Daniel Benyunes.
Sir Peter Caruana is assisted by Chris Allan and Philip Dumas.
Other core participants were also represented in the hearing on Wednesday.
The chairman of the Gibraltar Police Authority, Dr Joseph Britto, is represented by James Neish, KC, assisted by Shane Danino.
Current members of the RGP are represented by Nicholas Cruz and Arcelia Hernandez Cordero.
The Gibraltar Police Federation is represented by Gilbert Licudi, KC, and Charles Bonfante.
John Perez, Thomas Cornelio and Caine Sanchez are represented by Ben Cooper, KC, Ellis Sareen and Callum Smith.
Former police superintendent Paul Richardson is represented by Patrick Gibbs, KC.
Mr Santos, counsel to the Inquiry, is assisted by Hope Williams.
