CM drops legal challenge to Openshaw findings 

Chief Minister Fabian Picardo has dropped his claim for judicial review to challenge critical findings of him made in the Openshaw Report. 

His decision comes after the Royal Gibraltar Police apologised to Hassans senior partner James Levy, KC, for causing him “personal and professional embarrassment” through the “procedurally flawed” way it applied for warrants to search his home and office in May 2020, during the Operation Delhi investigation. 

The RGP apologised for damaging Mr Levy’s professional reputation after accepting that it failed to obtain legal advice and give the Stipendiary 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 too 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 RGP’s failure to obtain a production order rather than search warrants against Mr Levy was precisely the matter about which I criticised Mr McGrail and the former leadership of the RGP on the 12th May 2020,” Mr Picardo said in a statement on Tuesday. 

“At the Inquiry, I gave sworn evidence that my response on the 12th May 2020 was in defence of Gibraltar’s public interest in protecting the reputation of our finance centre, given Mr Levy’s significant importance, standing and seniority in it.” 

“My point was that a production order would have disclosed all Mr Levy’s relevant communications to the Police investigation, while also protecting Gibraltar’s international reputation as a finance centre.” 

“Nothing that I did or said sought to protect Mr Levy from a properly granted production order.” 

“That is exactly why I told Mr McGrail, at the time, that a production order, not search warrants, was the proper course.” 

“It was a view also shared by the Attorney General and the DPP at the time.” 

“The Inquiry Chairman chose to reject my evidence that I was motivated by the public interest in my desire to protect Gibraltar’s reputation.” 

“I remain clear that that was a decision I was elected to determine, understanding, as I did as Chief Minister, all of the many factors relevant to it which someone less familiar with what is important to Gibraltar cannot.” 

“Nothing in my decision today alters the fact that I profoundly disagree with and reject the Chairman’s opinion in this respect, and that I consider that he was not legally entitled to come to it on the evidence.” 

“That rejection of my evidence by the Chairman is, however, what directly led to the Inquiry findings against me personally that I challenge, whilst the rest of the report vindicated the Government as a whole and rejected the very serious allegations against it advanced by others.” 

Mr Picardo said he had brought the claim for judicial review on legal advice. 

The claim sought to challenge 14 findings about him in the report and called on the Supreme Court to make a declaration that they were “unlawfully arrived at” and “legally invalid”, alongside any further relief the court thought fair including an order that they be set aside or quashed.  

But the application for judicial review was resisted by lawyers for Sir Peter Openshaw, the retired UK High Court judge who chaired the McGrail Inquiry.  

They argued the “extremely unusual” application had little prospect of success and amounted to “an attempt to re-argue the merits through a forensic attack on specific passages” of the inquiry’s final report.  

A 10-day hearing was set to start on Wednesday but will now not proceed following Mr Picardo’s announcement on Tuesday. 

Mr Picardo said the claim sought to challenge findings that were “unreasonable and unlawful in the light of all the evidence”. 

“But, in the light of the RGP’s statement last week, I consider that the determination of these issues by the Court has become unnecessary,” he said on Tuesday. 

“The facts have finally changed now.” 

“The Police have finally confirmed that the previous leadership of the RGP were wrong to proceed as they did to obtain search warrants against Mr Levy.” 

“The RGP’s position is now finally in line with the long-established law and with the position I had taken with Mr McGrail to protect the public interest and Gibraltar’s reputation as a financial services jurisdiction, governed by the rule of law, from which to do reputable international business safely and securely.” 

“Absolutely everything that followed between Mr McGrail and me flowed from that disagreement on 12th May 2020 for which the RGP has finally apologised to Mr Levy.” 

“I consider that I have been vindicated by the RGP’s statement last week on the position I took in the meeting with Mr McGrail on 12th May 2020 and in my subsequent communications with others on the same point.” 

“Moreover, as I have repeatedly said, it was Mr McGrail’s responses to me at the 12th May 2020 meeting which led to my loss of confidence in him as Commissioner of Police.” 

“As the Inquiry Report itself accepted, I genuinely believed I had been deliberately lied to by Mr McGrail on that day about the preference for a search warrant over a production order. I still believe that. I know what happened in my office that day.” 

Mr Picardo did not refer to this in his statement, but the Inquiry also found that Mr McGrail did not lie, even though the Chief Minister believed that he had. 

Mr Picardo said in the statement that the RGP’s apology to Mr Levy “… completely changes the previously untenable position the Police took on the events of 12th May 2020 and the critically important issue to which it related…”, adding that there was no longer any need for the Court to spend time to consider his judicial review “because justice has been served”.  

“Although it has taken six years and has undoubtedly, unfairly, affected my own reputation nationally and internationally, I am delighted that the RGP has finally accepted that the previous leadership of the Police were wrong about the applications for the search warrants and that I have now been vindicated on the positions I took on the 12th May 2020 and subsequently in that respect,” Mr Picardo said. 

“As a result, there is no longer any need to spend further public funds to pay for legal costs on both sides in a two-week hearing.” 

The Chief Minister said that at the next meeting of Parliament, he would lay on the table the key documents in the judicial review claim.  

The documents set out in detail Mr Picardo’s claim and the Inquiry Chairman’s defence of his findings, as well as the Chief Minister’s reply to that defence and both parties’ skeleton arguments.  

“Everyone will thus be able to read the arguments in full and judge for themselves, in light of the statement from the RGP with Mr Levy which now undermines the positions that the previous leadership of the RGP maintained on the search warrants during the course of the Inquiry,” Mr Picardo said. 

“I will also now be freer to turn my full attention, without this distraction, to the last weeks of my work for the People of Gibraltar as Chief Minister.” 

“Finally, I also want to take this opportunity to express my confidence in the current, new, senior leadership of the Royal Gibraltar Police and to commend their approach in honestly and properly resolving the issue of the obviously improperly obtained search warrant in question.” 

“Had the previous leadership of the RGP taken this position earlier, it would have saved the whole of our community millions of pounds and avoided the unconscionable, unfair and untrue attacks on Gibraltar’s reputation as a jurisdiction that were fed by some of the participants in the Inquiry.”