McGrail inquiry hears allegations of Govt ‘misconduct and corruption’, strongly denied

Lawyers for former Commissioner of Police Ian McGrail on Tuesday alleged “misconduct and corruption” at the highest levels of government, in submissions to a public inquiry that were “denied and roundly rejected” by lawyers for government parties.

The statements came during the second preliminary hearing in an inquiry headed by Sir Peter Openshaw, a retired UK High Court judge of the Queen’s Bench Division in England and Wales tasked with probing the reasons and circumstances leading to Mr McGrail’s controversial early retirement in June 2020, after a 36-year career and halfway through his term in the top post at the Royal Gibraltar Police.

Adam Wagner, one of two UK barristers representing Mr McGrail, said his client had been placed under improper pressure by Chief Minister Fabian Picardo, KC, and Attorney General Michael Llamas, KC, over the conduct of a live criminal investigation into an alleged conspiracy to defraud Bland, the company tasked with running Gibraltar’s National Security Centralised Intelligence System (NSCIS).

He told the inquiry that the pressure was triggered after the Royal Gibraltar Police executed a search warrant against “a subject” in the investigation with whom the Chief Minister has “a close relationship”.

Mr Wagner alleged too that the Chief Minister, through his partnership of Hassans, owned part of the company at the heart of the police investigation and had “stood to gain financially” from the alleged fraud.

His client, he added, had been “muscled out” after being placed under huge stress.

But Sir Peter Caruana, KC, who represents Mr Picardo, Mr Llamas and Nick Pyle, the interim Governor at the time that Mr McGrail retired, said the allegations were denied by his clients.

He said the Chief Minister had never been a suspect in the police investigation, adding Mr Picardo had intervened to ensure the NSCIS contract remained solely with Bland.

Sir Peter Caruana told the inquiry 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.

Sir Peter Caruana said Mr McGrail retired early because he knew that, had he not done so, he would likely have been asked by Mr Pyle to resign.

He said Mr Pyle had progressively lost trust in Mr McGrail’s leadership over a long period of time, citing incidents including the 2017 runway incident, the March 2020 fatal collision at sea between a police vessel and a suspect RHIB, in which two Spanish nationals died, and his response to a report by Her Majesty’s Inspectorate of Constabularies and Fire and Rescue Services (HMICFRS) that was critical of the RGP, among others.

Sir Peter Caruana said Mr Pyle had kept UK ministers, senior Foreign Office officials and lawyers informed of the matter, adding it was “fantastic” to think he would have called for Mr McGrail’s resignation on the basis of the “improper motives and conduct” alleged by the former Commissioner.

The hearing took place in the Garrison Library and centred primarily on procedural matters, including policies and protocols for the handling of documentation and the inquiry’s approach to privacy and data protection issues.

The full hearing is expected to start on March 6, 2023, and last for three weeks. A third preliminary session is likely to take place in November.

MCGRAIL’S CASE

At the heart of Mr McGrail’s case is a police investigation called Operation Delhi into the alleged “hacking and sabotage” of the National Security Centralised Intelligence System, and into an alleged conspiracy to defraud Bland, the private company which operates the system.

The former Commissioner’s case hinges on the circumstances surrounding the execution of a search warrant on May 12, 2020, “against a subject” in Op Delhi.

“The Chief Minister has, and had at the relevant time, a close relationship with the subject,” Mr Wagner told the inquiry.

“The subject indirectly owned part of the company which was at the heart of the Op Delhi investigation, and which stood to gain financially from the alleged fraud.”

“The Chief Minister also owned - as a partner of Hassans - part of the same company and therefore also stood to gain financially from the alleged fraud.”

The Chief Minister was “mentioned” in the Op Delhi investigation documents, Mr Wagner said, though Sir Peter Caruana later told the inquiry that Mr Picardo was “not then and has never been” a suspect in the investigation.

“He was asked to give a witness statement in relation to certain communications to which he had been a party and he did so,” Sir Peter Caruana told the inquiry.

Mr McGrail’s lawyer told the inquiry that on the same day the search warrant was executed, his client was called to a meeting with Mr Picardo and Mr Llamas.

“They berated him for the intervention,” Mr Wagner said.

“The Chief Minister in particular was extremely angry and used intemperate language. The Chief Minister accused Mr McGrail of acting improperly.”

According to Mr Wagner, the Attorney General had voiced concern about the potential for the search warrant to cause “serious reputational damage” to Gibraltar.

Mr Llamas had claimed too that he had agreed with Mr McGrail that no further steps would be taken in the investigation without them speaking further, something that Mr McGrail denies, the inquiry heard.

According to Mr Wagner, Mr McGrail and other members of the RGP were placed under pressure “particularly by the Attorney General” to “change their approach” to the Op Delhi investigation.

Mr Wagner said the Chief Minister believes Mr McGrail had lied to him about having been advised by the Director of Public Prosecutions about the search warrant – something the former Commissioner denies - and that this was central to his loss of confidence in Mr McGrail.

According to Mr Wagner’s statement to the inquiry, the Chief Minister met with the then Governor, Nick Pyle, on May 15, 2020, and “planned together” to cause the Gibraltar Police Authority to invoke its powers under section 34 of the Police Act to remove the Commissioner from his post.

Mr Wagner noted that the Gibraltar Police Authority “is supposed to be independent from government”.

He rejected too Mr Pyle’s position that he had lost confidence in Mr McGrail over time because of other matters including the HMICFRS report and the fatal collision at sea.

Mr Pyle also says “he was not fully informed” on the location of the collision, something Mr McGrail denies, the inquiry was told.

Mr Wagner said the collision was the subject of an independent investigation by the Metropolitan Police ordered by Mr McGrail which, at the time Mr Pyle said he had lost confidence in the former Commissioner, had not reported “even on an interim basis”.

As for the HMICFRS report, Mr Wagner said Mr Pyle had not raised any concerns with Mr McGrail.

On May 18, 2020, according to Mr Wagner’s statement, the chair of the Gibraltar Police Authority, Dr Joey Britto, was invited to meet the Chief Minister and Mr Pyle at The Convent, where he was told of the “supposed loss of confidence”.

“It is unclear whether the details of the criminal investigation, the close relationship between the Chief Minister and the subject, or the fact that the Chief Minister owned part of the company which stood to benefit from the alleged fraud were made known to Dr Britto or indeed, to Mr Pyle,” Mr Wagner said.

The lawyer alleged that in the ensuing days, the Chief Minister “stage-managed” the attempt to exercise the powers under section 34 of the Police Act, even though these were vested in the Gibraltar Police Authority.

Mr Wagner further alleged the Chief Minister was in regular communication with Dr Britto, setting down a sequence of events in writing and approving correspondence.

On May 22, 2020, Dr Britto informed Mr McGrail that the Chief Minister and Mr Pyle had lost confidence in him and therefore the Gibraltar Police Authority would be invoking section 34 and requiring him to retire.

Mr McGrail asked for detailed reasons to support the decision and these were communicated to him later that same day in a letter which, Mr Wagner told the inquiry, had been substantially written by the Chief Minister.

“The letter made no mention, however, of what the Chief Minister now says was the single or principal reason for losing confidence in Mr McGrail, namely the issues around the execution of the search warrant against the subject,” Mr Wagner said.

By June 5, 2020, however, the Gibraltar Police Authority had taken legal advice and informed the Chief Minister and Mr Pyle that it could not proceed with the section 34 process because it was “procedurally flawed” and was “vulnerable to challenge on grounds of bias”.

The invitation to retire was withdrawn, the inquiry was told.

By June 8, 2020, Mr Pyle had informed Mr McGrail that he was considering invoking his powers under section 13 of the 2006 Act to call for his resignation, a step with which Mr McGrail would have been required to comply if the exercise of the powers was lawful.

Mr Wagner noted that the new Governor, Vice Admiral Sir David Steel, had by that stage been appointed and was due to arrive in Gibraltar on June 10.

“This sequence of events was hugely stressful for Mr McGrail and his family,” Mr Wagner told the inquiry.

“He was also concerned that if he was forced to resign - as opposed to retire - this would put his pension rights at risk.”

“Despite knowing that he was being muscled out because of the issues surrounding Op Delhi, he took the extremely difficult decision to succumb to the pressure and retire from the role which represented the pinnacle of his career.”

After a short negotiation of terms, Mr McGrail took early retirement on the morning of June 9, 2020.

GOVT PARTIES’ REPLY

Responding to the allegations raised by Mr Wagner, Sir Peter Caruana rejected the suggestion that the Chief Minister stood to gain financially from the alleged fraud.

Mr Wagner had told the inquiry that as a partner in Hassans, Mr Picardo had a shareholding interest in the company at the centre of the fraud investigation and therefore stood to gain financially from the alleged fraud.

“Mr Picardo's interest in that company was an interest of the partnership, Hassans, of which he is a partner together with all other partners of that firm,” Sir Peter Caruana said.

“The evidence will show that the Chief Minister's intervention in relation to the subject of the alleged fraud was to ensure that those who may have wished to benefit did not do so, by ensuring that the NSCIS contract remained with the incumbent, Bland, and only with them.”

Sir Peter Caruana said his clients’ case was that Mr McGrail had “properly and inevitably” sought early retirement after learning he had lost the confidence of the Governor and the Chief Minister, and that had he not, there was “a very real risk” that the Governor would call publicly for his resignation.

“The Chairman of the Gibraltar Police Authority had said this to him, and Mr McGrail clearly believed that the Governor would do so,” Sir Peter told the inquiry.

“This is evident from Mr McGrail’s own stated case.”

And he added: “Only His Excellency the Governor - and not the Chief Minister, Mr Picardo, still less the Attorney General, Michael Llamas - had, at that time, power to call for Mr McGrail’s resignation, and it is therefore self-evident from his own statement that he chose to retire to avoid the anticipated actions of the Governor, who had lost confidence in him, and had told him so.”

Sir Peter Caruana referred to a letter sent to the Gibraltar Police Authority by Mr McGrail ‘s solicitors, Charles Gomez and Co, on May 29, 2020, containing allegations against the Chief Minister, the Attorney General and the Governor.

The allegations in the letter were expressed in an “intemperate manner”, Sir Peter Caruana told the inquiry, and it was “inconceivable that [Mr McGrail] could reasonably expect that he could remain as Commissioner of Police thereafter, once those allegations had come to their notice, since it would no longer be possible for them to work together with mutual confidence, in the manner and to the extent that their responsibilities require.”

This, he added, would be the case whether Mr Pyle was in his then interim role as Governor or after he returned to his post as Deputy Governor following the appointment of Sir David Steel.

Sir Peter Caruana said the reasons why the Chief Minister and the Attorney General had also lost confidence in Mr McGrail were “not, in the event, relevant” to the reasons why he chose to retire.

“That was clearly triggered by the actions and position of the Governor,” he told the inquiry.

“The Governor had not lost confidence in Mr McGrail, and did not intend to call for his resignation, for any reason to do with the criminal investigation in which Mr McGrail alleges - which is denied and roundly rejected - that the Chief Minister and the Attorney General interfered.”

Sir Peter Caruana told the inquiry that the Governor’s loss of confidence in Mr McGrail’s “probity and integrity” and his leadership of the RGP had been progressive over an extended period of time, and as a result of several incidents and matters.

He cited the handling of an incident on the airfield in February 2017 involving an RAF plane and some of the most senior military officers in Gibraltar, the aftermath of which “unnecessarily” brought the relationship between Gibraltar and the Ministry of Defence “to near crisis point”.

He cited too an investigation into a severe assault on an RAF pilot in which no one was prosecuted.

Sir Peter Caruana spoke too of the “fractured and almost hostile” relationship between Mr McGrail and the Gibraltar Police Federation, claiming it had resulted in very low morale and a formal complaint to the Gibraltar Police Authority about Mr McGrail.

Also relevant, Sir Peter Caruana said, was Mr McGrail’s “failure to address or effectively tackle” serious issues raised in a 2016 report on the RGP conducted by Her Majesty’s Inspectorate of Constabularies and Fire and Rescue Services.

Additionally, Mr Pyle considered he had been “misled” by Mr McGrail “through intentional omission” on the location of the fatal collision at sea outside British Gibraltar territorial waters.

“All of these factors arose and occurred well before the alleged - and denied - interference by the Chief Minister and the Attorney General in the criminal investigation known as Operation Delhi,” Sir Peter Caruana told the inquiry.

“The Governor’s deep concern with Mr McGrail’s leadership qualities had absolutely nothing to do with that RGP investigation.”

“Indeed, the Governor had no prior knowledge about the criminal investigation, until the Chief Minister brought it to his attention in their meeting on the 15th May 2020.”

But Mr Wagner later countered that some of the issues raised by the government parties were “entirely peripheral and have only been included to muddy the waters”.

He cited, for example, the assault on the RAF pilot incident, which he said “predates Mr McGrail's tenure as Commissioner”.

In his statement to the inquiry, Sir Peter Caruana stressed that only the Governor could have called for Mr McGrail’s resignation under section 13 of the Police Act.

“At no time was he put under any pressure by any person, including the Chief Minister, to decide to do so,” he told the inquiry.

“It is frankly fantastic to believe, as would need to be the case for Mr McGrail’s case theory to be correct, that, however much Mr McGrail may be willing to attribute improper conduct and motives to the Chief Minister and the Attorney General, the Governor would state that he had lost confidence in the Commissioner of Police and consider calling for his resignation, based on those improper motives and conduct, in full view of UK Foreign Office ministers, senior officials and legal advisers, whom the Governor kept briefed in timely manner.”

LAWYERS

Mr Wagner, a UK lawyer who has acted in some of the key public law and human rights cases of recent years in the UK, appears for Mr McGrail alongside Caoilfhionn Gallagher, KC. Ms Gallagher was not present during Tuesday’s hearing.

Ms Gallagher, an experienced human rights lawyer, has acted in high-profile UK cases including representing bereaved families and survivors of the 7/7 London bombings and the Hillsborough disaster.

Mr McGrail’s legal representatives also include a solicitor team led by Charles Gomez and Nicholas Gomez.
Sir Peter Caruana is assisted by Chris Allan and Philip Dumas.

James Neish, KC, appeared for the Gibraltar Police Authority, assisted by Shane Danino.

The inquiry legal team is led by counsel Julian Santos alongside Hope Williams, and a solicitor team led by Stephen Catania and including Sunil Chandiramani and Jemma-Louise Emmerson.

During Tuesday’s hearing, Nick Cruz appeared as a watching brief for the RGP alongside Kristine Reina.