MCGRAIL INQUIRY STARTS WITH DISCORD

*Procedural arguments heard
*Hearings and findings will be public
*McGrail claims pressured to retire
*Such pressure denied but inconsistently Governor would have called for resignation
*McGrail’s allegations to be kept away from public view for now
*Should the Attorney General not represent himself?

PUBLIC HEARING STARTS

In a room at the Garrison Library with appalling acoustics, which led to many in the public gallery not hearing many of the submissions, procedural arguments were made yesterday (22nd June 2022) on matters that will be dealt with in the Inquiry into the retirement of Ian McGrail as Commissioner of Police on the 11th June 2020.

Despite the difficulty in hearing much, the Commissioner Sir Peter Openshaw DL QC emphasised that the inquiry is public. He also made clear that his findings will be made public, and will not be subject to Government approval.

BASIC ARGUMENTS OF EACH

Mr. McGrail’s case is that he was wrongly pushed by persons “at the highest level of government” to retire over a criminal investigation the details of which remain unknown, and that he surrendered to that pressure.

Sir Peter Caruana, QC, strangely acting for Chief Minister Fabian Picardo, then Governor Nick Pyle and the Attorney General Michael Llamas, because each may have their own positions to defend, was quick to contradict Mr. McGrail’s claim. He denied that Mr. McGrail was put under any pressure by any of them.

Yet surprisingly and with seeming inconsistency, he went on to argue, that “Mr. McGrail chose to retire because he knew, that having lost the confidence of the Governor and the Chief Minister, his position had become untenable and that, had he not retired … the then Governor intended to exercise his power … to call publicly for his resignation on the grounds that he had lost confidence in Mr. McGrail.”

ALLEGED FACTS NOT REVEALED YET

As anticipated, the lawyers for Mr. McGrail attempted in their written skeleton arguments to introduce alleged factual context, to huge resistance from Peter Caruana, based on it being unfair to publicly air these at such an early stage, without his client’s having been given time to counter the matters put forward by Mr. McGrail.

It was agreed that those matters be blacked out for now and not made public.

SHOULD ATTORNEY GENERAL HAVE THE SAME COUNSEL?

The potential for the independence of each party to be blurred by having the same lawyer came to the fore when Peter Caruana addressed the Commission about a decision not to prosecute someone who remains unidentified (‘a nolle prosequi’).

It is a decision that the Attorney General must take alone and independently under the Constitution. His being represented in the Inquiry by the same lawyer as the then Governor and Chief Minister does not look good.

Peter Caruana was insistent that the issue of the nolle prosequi needed to be dealt, probably in private, and “upon a very special application … because although the insinuations … are severely disputed, indeed rejected and denied, to articulate the reasons for his actions then would defeat the very reasons why he had to do it.”

The question arises, surely the Attorney General, a Queens Counsel in his own right, should be defending his own decision to enter a nolle prosequi, especially due to the requirement of independence. Why is Counsel for the then Governor and the Chief Minister putting forward arguments about that decision?

The Gibraltar Police Authority are rightly separately represented. James Neish QC appeared for it.

IS IT THE ‘NOLLE’ OR SOMETHING ELSE?

The identity of who the Attorney General decided not to prosecute is not public, but Mr. McGrail resigned in June 2020, the only such decision to enter a nolle prosequi near that time was taken a full 18 months later in January 2022. It is difficult to understand the bearing that issue has on Mr. McGrail’s retirement.

Could it be that it was not that decision that bore down on Mr. McGrail, but rather something totally different? If it is the distraction element is big. Much will likely be revealed over time, when the Inquiry establishes the facts, a process that will not start until March 2023.