Chief Minister challenges 14 McGrail Inquiry findings as “irrational, unlawful, and unfair”

The Chief Minister is challenging fourteen findings in the McGrail Inquiry report, describing them as irrational or unreasonable, unlawful, and unfair.

Fabian Picardo has filed an application for judicial review against Sir Peter Openshaw in the Supreme Court.

He argues that the Chairman’s harsh criticism of him has damaged his reputation as both a politician and a lawyer, and has also infringed his human rights.

The Chief Minister’s application for judicial review arises from his position that the McGrail Inquiry report’s findings, decisions and comments are contrary to the evidence presented, and are inconsistent and contradictory.

The Inquiry concluded that former Police Commissioner Ian McGrail retired early because he felt unfairly and unlawfully compelled to do so, after Fabian Picardo had inappropriately attempted to interfere with a live police investigation involving his friend, Hassans Senior Partner James Levy.

There are fourteen Challenged Findings which Mr Picardo’s Counsel, Sir Peter Caruana KC, states are judicially reviewable on the basis that they are procedurally defective or reached unlawfully, irrational, outside the scope of the Commission, and in breach of his human rights.

These relate to:

• The attempted interference in the RGP Operation Delhi investigation. This involved the alleged sabotage and hacking of the National Security Centralised Intelligence System (NCIS), resulting in an attempt to serve a search warrant on Mr Levy. 
• Other improper conduct in relation to the RGP investigation
• Misleading or concealment from the Police Authority
• The sequence of events leading to Mr McGrail’s retirement. 

The Challenged Findings

1. The attempted interference in the investigation at the meeting with Mr McGrail on the 12^thMay 2020

The Chief Minister rejects this, citing an error of fact and reasoning by Sir Peter Openshaw. Mr Picardo describes the conclusion, that he had “plainly crossed the line” in the meeting, as unreasonable or irrational, and not based on any clear criterion. As for berating Mr McGrail, Mr Picardo states this was not about interfering with the execution of the search warrant – a fact that Sir Peter Openshaw acknowledges in his report. He also highlights, as the Chairman pointed out, that he was entitled to criticise and express his views, albeit angrily, but that this cannot be translated into improper interference.

2. Rejection of Mr Picardo’s “Jurisdictional argument.”

Sir Peter Openshaw was highly critical of the notion that a small circle of rich and powerful individuals should be protected for the sake of the jurisdiction, but Mr Picardo claims this finding is unsupported by the evidence and lacks logical integrity. Mr Picardo demonstrates that it was Mr McGrail himself who engaged the public interest by sending him a WhatsApp message before the police arrived at Hassans, citing the “delicate nature of the intervention”.

On Sir Peter Openshaw’s opinion – that rather than trying to protect the jurisdiction, Mr Picardo was seeking to protect his friend – the Chief Minister questions the logic, when even the Chairman found that he did not know at that point that Mr Levy was a suspect.

Furthermore, Mr Picardo states that it is not up to the Chairman to decide what is in the public interest, to do so would be to “usurp” the function of the Chief Minister.

3. Interference with the investigation by referring Mr Baglietto to the Police (Discipline) Regulations.

Mr Picardo questions how this could be construed as interference when Sir Peter Openshaw himself acknowledged that the Chief Minister knew the regulations did not apply to the Commissioner of Police.

He states there is no evidence it could be inferred that Mr Picardo was speaking to Mr Baglietto about the removal of either Mr McGrail or the then RGP Superintendent Paul Richardson. 

Therefore, he says this finding lacks logical integrity and is therefore irrational, pointing out that the RGP could, even with the removal of Mr McGrail, still have continued its investigation.

4. Interference in the investigation by requesting the Attorney General to consider taking over and discontinuing the warrant proceedings.

The Chief Minister says he is perfectly entitled to ask the Attorney General to consider properly using his powers in support of a public interest matter. He argues that to discontinue a search warrant procedure following a proper, lawful and judicial process cannot in any circumstances be an interference with the investigation. Mr Picardo says this finding “lacks logic to the degree of unreasonableness.”

5. Interference in the investigation by “unexplained” contacts with James Levy.

Mr Picardo’s application says, “The Chairman’s finding that the Chief Minister’s contact with Mr Levy, if unexplained, would have at least the appearance of interference with the investigation, lacks logical integrity, is an error of reasoning and arbitrary and is irrational and accordingly unlawful.”

6. Speaking to and meeting with a suspect and his lawyer about suspected offences.

 This challenge relates to meetings Mr Picardo had with Mr Levy and his lawyer Lewis Baglietto. In his report, Sir Peter Openshaw observes that the Chief Minister met with “a person then suspected of a serious crime…with the lawyer acting for him, in his own home, without any record or minute of the meeting.” The Chairman concludes this was a “grossly improper meeting which should never have happened.”

However, Mr Picardo says, “The findings are simply the opinion of the Chairman based on what he thinks is proper and not proper behaviour on the part of the Chief Minister.” He adds that they are unfounded in any established legal principle, highlighting Sir Peter Openshaw’s own comment that Mr Picardo had no legal standing or responsibility for criminal investigations or prosecutions, also pointing out that the Rule of Law requires that different emanations of the Crown are free to act independently of each other.

7. Findings that at the 17^thMay meeting the Claimant (Fabian Picardo) had improperly approved the proposal of a written statement to Mr Levy to the RGP.

Mr Picardo says, “There is no rational forensic basis for that apparently compulsory conclusion.”

He concludes that the finding is laced with supposition and arbitrary speculation.

8. Findings about the reassurance given by the Claimant (Fabian Picardo) to Mr Levy at the 17 May meeting

 Sir Peter Openshaw does not accept Mr Picardo’s statement that he had sought to reassure Mr Levy about his standing in the community in relation to Community Care Trust, writing in his report that it was more likely Mr Levy was re-assured by what Mr Picardo had to say about Mr McGrail and Operation Delhi. 

Mr Picardo rejects this, accusing the Chairman of suggesting that they had “lied on oath”.  He says there is “no fact in evidence as to what was said at that meeting.”

9. Finding about the suggestion made by the Claimant (Fabian Picardo) to Mr Baglietto in relation to the recovery of Mr Levy’s devices from the RGP under Section 6 of the Police Act.

Mr Picardo states the Chairman does not explain why this should be considered to be improper, let alone a “gross impropriety.”

He observes that “any such outcomes would necessarily be the decision of a court based on its view of Mr Levy’s entitlement to return of his devices.”

10. Non-disclosure of the 17^thMay meeting

Mr Picardo rejects the finding that he “deliberately” did not disclose the meeting with Mr Levy and Mr Baglietto at his house until just before the main inquiry hearings…because he knew others would find it to be deeply inappropriate.”

He says he gained nothing from delaying the disclosure, and if his motivation in doing so was because it had been inappropriate, then logically, he would not have disclosed it at all. 

Mr Picardo refers to the Chairman’s report, arguing that he could not have felt free to meet and discuss matters with Mr Levy and Mr Baglietto and also deliberately tried to conceal the meeting.  “The two cannot sit together.”

11. Determination to thwart the search warrant

Mr Picardo says there was no evidence before the inquiry that he took any steps to try to persuade either Mr McGrail or the RGP not to execute the warrant or prevent the RGP from examining Mr Levy’s phones. 

12. Deliberate concealment from and misleading the GPA

Sir Peter Openshaw stated that Mr Picardo “quite deliberately and cynically did not spell out [to the Police Authority] that his real grievance arose from the issue of the warrant against Mr Levy, including the alleged lie.”

The Chief Minister rejects this, saying Joey Britto and the GPA were well aware of Operation Delhi.

Mr Picardo says that while Mr Britto’s weakness of character may have led him to perceive he was “being told what to do,” this does not change the fact that he was informed that he must give Mr McGrail the chance to make representations. They were entitled to assume that the GPA would properly discharge its statutory functions in accordance with its own procedures.

Mr Picardo notes, “The Chairman’s failure to criticise the Governor in this respect, while correct, demonstrates the irrationality of his criticism of the Claimant for the same thing.”

And he adds, “if this was pressure applied by anyone on the GPA (which is denied), it was pressure applied by the Governor, NOT the Claimant.”

As to the letter to the GPA being “Sinister” for failing to mention Op Delhi, Mr Picardo first points out that the Chairman acknowledges that he genuinely believed he had been lied to which, he asserts, was sufficient cause for him to lose confidence in Mr McGrail. Secondly, Mr Picardo says, as Mr Britto knew about the Hassans/James Levy connection, “there was no concealment.”

13. Findings in relation to the manner in which the S.34 Police Act complaint was raised.

The Chief Minister says this finding is an error of reasoning and lacks logical integrity, and is manifestly unfair as it “distorts and mischaracterises” Mr Picardo’s role and responsibilities in relation to the Section 34 process.

He asserts that Sir Peter Openshaw has distorted and mischaracterised his role and responsibilities in relation to Section 34.

This, he highlights, is a GPA process, and he had no obligation to give Mr McGrail the proper particulars of what was alleged against him. Nor, he says, was his failure to do so the cause of any injustice to Mr McGrail.

He says, “To lay the responsibility on the Claimant…(when, in any event, it was the Governor’s reasons that most concerned the GPA and whose power to require him to resign Mr McGrail feared to the point of “jumping before he was pushed,” which only the Governor could do), is to distort both the process and the causative realities of Mr McGrail’s retirement.”

14. Findings in relation to why Mr McGrail retired.

Here, Mr Picardo’s application states “Only the Governor had the power to compel or “push” Mr McGrail. The Claimant had no such power.”

It adds that the evidence “clearly shows that Mr McGrail retired because he feared that the Governor was about to exercise his power under Section 13 of the Police Act.”

The application concludes that it is therefore irrational for the Chairman to attribute Mr McGrail’s feeling that he was “compelled” to retire to any failure on the Claimant’s part.

Remedies

Mr Picardo, who says his reputation has been damaged by the report, seeks a declaration that the Challenged Findings have been unlawfully arrived at and are legally invalid and such further or other relief as the court may think fair and just, including an order that they be set aside or quashed.