RGP apologises to James Levy for ‘procedurally flawed’ Op Delhi search warrants

The Royal Gibraltar Police has apologised to Hassans senior partner James Levy, KC, for causing him “personal and professional embarrassment” through the “procedurally flawed” manner in which it applied for warrants to search his office and home on May 6, 2020.

The apology and its context were set out in a joint statement issued on Friday night by Owain Richards, the Commissioner of Police, and Mr Levy concerning the warrants applied for by the RGP and granted by the then Stipendiary Magistrate.

The RGP apologised for damaging Mr Levy’s professional reputation after accepting that it failed to obtain legal advice and give the magistrate the full picture when it applied for the warrants.

Police said they had failed to set out adequately why a court production order to hand over material might not have sufficed instead, or to give proper weight to Mr Levy’s good character and standing.

The RGP accepted that it had obtained the warrants without meeting the required legal safeguards and as a result had interfered with Mr Levy’s constitutional rights.

The warrants related to Operation Delhi, one of the central issues explored by the McGrail Inquiry and its chairman, Sir Peter Openshaw.

Operation Delhi was 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.

At the time of the warrants, Mr Levy was a suspect in the investigation though he was never arrested or charged and was later exonerated after the police investigation ran its normal course.

In his report, Sir Peter said he was “entirely satisfied” that the application for the search warrants was made in good faith by the RGP’s officers, who strongly defended the decision during evidence to the Inquiry.

He noted though that the application granted by the court was drafted by police without the benefit of legal advice, as was the practice at the time.

Sir Peter noted too that Mr Levy, in evidence to the Inquiry, had repeatedly stated his belief that the warrant was unlawful and had reserved his right to challenge it in court.

In the report, Sir Peter made no finding as to the warrant’s legality but identified aspects of the application which he said others might consider were procedural flaws.

In the joint statement on Friday, the RGP acknowledged those flaws.

“With the benefit of the detailed review conducted subsequent to the McGrail Inquiry, the RGP now accepts that the application process failed to draw to the Magistrate's attention matters that militated against the grant of the warrants as identified in the Openshaw Report,” the joint statement said.

“In particular, in drafting the application and presenting it to the Magistrate, the RGP did not comply with the enhanced duty in applications of this nature to make full and accurate disclosure of information capable of undermining its case.”

“Consequently, the RGP failed adequately to identify counterarguments supporting a production order rather than a search warrant or to properly address Mr Levy's good character and standing.”

“The RGP accepts that, given the particular circumstances of the warrant application made on 6 May 2020 in respect of Mr Levy, it should have obtained adequate written legal advice from experienced counsel on the drafting of the information in support of the application for the warrant.”

The statement said that in the light of the recommendations of the Openshaw Report and following its own review of the matters in question, the RGP would in future instruct a lawyer to assist in drafting and presenting applications to a court in any case of comparable complexity.

The RGP recognised that the application for obtaining the warrants was “…procedurally flawed and that, as a result, the warrants were not obtained in accordance with the relevant legal requirements and safeguards and that this interfered with Mr Levy's constitutional rights.”

“As a result of the matters stated in the paragraphs above, the RGP apologises to Mr Levy for having adversely affected his professional reputation, standing and rights and, on an ex-gratia and without admission of liability basis, has offered to pay a sum of £2,000 to the Gibraltar Community Care Trust,” the statement said.

In the statement, Mr Levy acknowledged “as he always has” that the RGP officers who attended his office and home to serve the search warrants “acted in a courteous manner”.

He also acknowledged that the search warrants were not executed and that those RGP officers “honestly believed that their actions at the time were procedurally proper although mistaken”.

The joint statement noted that the Openshaw Report concluded that the officers who applied for the search warrants acted in good faith.

It said that since Mr Levy was not privy to the application nor to the deliberations that led to the application being made, he was unable to comment in that respect.

The statement also acknowledged a disagreement between the two parties on a legal point relating to the offence of conspiracy to defraud.

Mr Levy remains of the view that the warrant application alleged an offence of conspiracy to defraud contrary to the common law that had been abolished by section 35(1) of the Crimes Act 2011 and was only reinstated as an offence by section 3(1) of the Crimes and Miscellaneous Provisions (Amendment) Act 2023, the statement said.

“It is Mr Levy's contention that as the offence did not exist at the relevant time, then no lawful warrants could be issued in relation to it,” it added.

“The RGP reserves its position as to the existence of the offence until such time as a court, with jurisdiction to do so, rules upon the matter.”

“The RGP, therefore, does not admit that the offence of conspiracy to defraud at common law has been abolished.”

The joint statement was issued just after 9pm on Friday by Neil Costa, the lawyer representing Mr Richards and the RGP. Mr Levy and Hassans were represented by Shane Danino, who was copied into the email.

In January this year, Mr Levy gave notice of civil action over the legality of the search warrants.

But the statement said that after exchanges between the solicitors on behalf of the RGP and Mr Levy, the parties had agreed to settle their differences amicably and without resort to litigation.

The settlement includes an agreement not to litigate the issue of whether the offence of conspiracy to defraud existed at the time, provided that their difference of positions was duly reflected.

The parties also agreed not to make any further comment without prejudice to their respective legal positions, and to their respective rights to comment on any future court ruling on the existence of the common law offence of conspiracy to defraud.

They stressed that the statement “relates solely and exclusively” to the RGP's application, and the grant by the Magistrates’ Court, of the search warrants as against Mr Levy on May 6, 2020, and did not relate to any other matters.

In the statement, the RGP said it “fully recognises” that Mr Levy is “…a leading and prominent member of the Gibraltar Bar, the esteemed President of the Jewish Community, and a person of integrity and good character and standing in the legal profession and in the Gibraltar community.”

“Moreover, the RGP duly acknowledges the charitable endeavours of the Hassans Charitable Trust for the benefit of the local community.”