McGrail Inquiry Chairman urges court to reject Chief Minister’s legal challenge

In a detailed defence filed with the court, the Chairman of the McGrail Inquiry, Sir Peter Openshaw, argues the Chief Minister’s claim is fundamentally flawed and should not be allowed to proceed.

The defence says it has not identified any successful judicial review of a final inquiry report since the Inquiries Act 2005 came into force, underlining how rare such challenges are.

Sir Peter Openshaw’s legal team is urging the court to refuse permission on all grounds, and not allow Fabian Picardo’s challenge to go ahead.

The reponse

In the 36-page document, the Chief Minister’s claim is described as ‘extremely unusual’ because courts very rarely interfere with the final findings of a public inquiry.

Broadly, the defence says Fabian Picardo’s challenges are “simply disagreements with the Chairman’s factual findings”. The Inquiry team say the challenges relate to the weight given to conflicting evidence and are “not a proper basis for seeking judicial review.”

Sir Peter Openshaw describes this approach as ‘inappropriate’ and a ‘forensic attack’ on specific passages of the report.

Basis for a judicial review

The defence sets out the legal framework for judicial review, stressing that it is not an appeal process. It cites legal authority stating that: “The Court should only explore the evidence to the extent required to see if the decision is vitiated by legal deficiencies”

The Chairman suggests the court could deal with permission and the merits of the case together at what is known as a “rolled-up hearing”.

Maxwellisation process

The response reveals that Mr Picardo received an annex of criticisms in a draft report on 4 July 2025. The deadline for his response was extended by four weeks, and he replied in a 47-page letter on 8 August 2025.

The Chairman states he “carefully considered the arguments made in the letter” and made amendments to the Draft Report in some instances.

Legal flaws and procedural fairness

The Inquiry team says that, with one exception relating to Sir Peter Openshaw’s interpretation of Section 34 of the Police Act, there are no further allegations of incorrect interpretation of legislation. However, the Chairman rejects this.

On procedural unfairness, the Chairman’s Counsel says this does not form any part of Mr Picardo’s submissions.

Evidence and irrationality

The defence highlights the distinction between a finding based on no evidence, and one where different weight is given to conflicting evidence.

On irrationality, it says the legal threshold is extremely high: “so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question… could have arrived at it”

In simple terms, it would have to be a decision that no reasonable person would reach.

The Chairman goes further, stating that his findings, "do not involve self-contradiction, or even inconsistency… they do not come close to irrationality.”

The Chairman argues that none of the challenged findings come close to meeting that test, and that the claim ‘falls short’ of demonstrating irrationality.

Scope and lawfulness

Mr Picardo claims that some findings were outside the scope of the Inquiry, and that there was an error of law in the interpretation of Section 34 of the Police Act.

However, the defence rejects this, stating that the Chairman does not accept that the challenged findings were outside the Inquiry’s terms of reference.

It adds that the Inquiry’s terms of reference were “very broad,” allowing the Chairman to examine both the reasons and wider circumstances leading to Mr McGrail’s retirement.

In essence, the defence argue the Chairman was entitled to consider the broader context, not just direct causes.

Reputation and public scrutiny

The Chief Minister also argues that the findings interfered with his right to reputation.

The defence says: “The fact that a Report has negatively impacted someone’s reputation is not in and of itself a basis for judicial review.”

The document also notes that it was the Chief Minister who called the Inquiry, “thus creating the platform for intense public debate”.

It adds, the concept of “private life” is “unlikely to extend to the performance of public functions by a public official.”

The Chief Minister cited evidence of reputational harm, referencing several articles and news reports that were critical of him, including ones written by Rebecca Calderon, Nick Cruz, Keith Azopardi, Damon Bossino and Charles Gomez.

The defence says that Sir Peter Openshaw’s findings were ‘extremely serious’, rational and lawful,  and that ‘one would expect a politician to wear’ such criticism.

The defence also refers to material in the appendix, including a public statement issued by the Chief Minister on publication of the Report in which he said: “For me, when you are the subject of criticism, you do not hide or give up. You face the music. You learn the hard lessons. And then, you move forward.”

He also notes that Mr Picardo: “contributed to public discussions about the report, including in a televised press conference that the Report ‘vindicates’ him and ‘completely exonerates’ the Government.

The defence concludes, “it is difficult to reconcile these comments with the extensive alleged reputational damage that he now claims.”

Illegality

The Chairman states his findings were: “not based on any misstatement or misunderstanding of the evidence”

While the defence accepts there may have been one slip up as a result of a drafting error, it says this was, ““immaterial” and did not affect the substance of the conclusions.

Rebuttal of the 14 challenged findings

The defence goes on to address each of the challenged findings in turn, rejecting the suggestion that they were irrational or unsupported.

1. Interference in the investigation

On the events of the 12 May meeting, the Chairman maintains that he was entitled to reach his conclusions based on the evidence before him.

He argues that the Chief Minister’s conduct was, “plainly intended to influence the direction of the continuing investigation”

The submissions point to the tone and nature of the criticism, including references to consequences, concluding that this: “plainly crossed the line”

Mr Picardo argues that there is no criterion for this, and the Chairman accepts that “identifying the exact line where criticism becomes interference is challenging.”

Ultimately, the Chairman adds, Mr Picardo’s objection leads nowhere, and that “this meeting ‘plainly’ crossed the line.” He states, “this was not a marginal case, and therefore the difficulty did not arise.”

2. Jurisdictional argument

The submissions also address the Chief Minister’s argument that he was acting in the public interest of Gibraltar, and not, as the Chairman concluded, to protect his friend James Levy.

However, the Chairman rejects that position, stating, “There was ample evidence supporting the Chairman’s conclusion on C’s (Picardo’s) motivation”

3. Communications with Lewis Baglietto

The Chairman says he is entitled to reject Mr Picardo’s evidence that his message to Mr Baglietto about the Police (Discipline) Regulations were about Mr Richardson and not Mr McGrail.

He says this conclusion was reached based on evidence “as well as his assessment as to his credibility.”

4. Communications with the Attorney General

The Chairman defends his finding, that Mr Picardo’s late night message to Michael Llamas to consider discontinuing the warrant proceedings was a grossly improper attempt to interfere with the investigation. He says, “it’s immaterial that a court would have needed to supervise the act of these powers,” because it was the “act of sending the message," the Chairman based his finding on.

5. Unexplained contact with James Levy

The defence says “the finding comes nowhere near close the threshold for irrationality,” and was within the Chairman’s terms of reference.

6. Meeting with a suspect and his lawyer about suspected offences.

The defence rejects Mr Picardo’s argument that the Chairman’s finding is not based in any established legal principle. It says Sir Peter Openshaw’s conclusion about this meeting was “not a legal determination but based on the constitutional context.”

The fact that the Chief Minister has no legal standing in prosecutions in Gibraltar, “does not exonerate him.”

7. Finding that Mr Picardo improperly approved a written statement from Mr Levy to the RGP

The defence again rejects Mr Picardo’s assertion that this was an irrational finding. They say “the Chairman was entitled to draw this conclusion” on the basis of all the evidence before him.

8. Reassurances given by Mr Picardo to Mr Levy

The Chairman states this was an “entirely rational conclusion,” and that Mr Picardo’s evidence - that the meeting was about Mr Levy’s position with Community Care Trust - was “implausible.”

9. Finding in relation to Mr Levy’s phone

Sir Peter Openshaw rejects Mr Picardo’s argument that there was nothing wrong in suggesting to “a person” how Mr Levy could retrieve his property, pointing out this was not just “a person” but someone suspected of being involved in a conspiracy endangering the national security of Gibraltar.

10. Non-disclosure of the 17^th May meeting

The defence states this finding is correct: Mr Picardo did not disclose the fact of this meeting until “very shortly” before the Main Hearing and that he only did so when the inquiry team followed up with questions about some of the disclosed messages that Mr Picardo “finally addressed” the meeting in his fourth affidavit.

11. Mr Picardo was “determined to thwart” the search warrant

Sir Peter Openshaw rejects Mr Picardo’s claim that there was no evidence, saying,“This is wrong: there was copious evidence.”

12. Deliberate concealment and Misleading GPA

This is the lengthiest of all Mr Picardo’s challenges, running to nearly 20 pages, which the defence says suggests that what the Court is being asked to do is not appropriate for judicial review. It points out the Court should not be reviewing the report “sentence by sentence.”

On Mr Picardo’s challenge that the GPA did know the “truth” about the warrant, the Chairman calls on the court to read this section of his findings, stating “This is the mischief of C’s attempt to isolate and challenge specific statements within the Report, as opposed to the general thrust of the findings. C’s approach is inappropriate and should be resisted.”

Also, for the avoidance of doubt, the defence adds, “The Chairman did not find that the “lie” was sufficient reason for C to have lost confidence in Mr McGrail. The Chairman’s finding was only about C’s genuine belief.”

13. S34 Police Act

Here, the defence states Sir Peter Openshaw’s conclusions about Mr Picardo’s unfairness are both rational and legally correct.

14. Findings on why Mr McGrail retired.

Mr Picardo objects to the finding that Mr McGrail retired because “he felt he was being unfairly and unlawfully compelled to do so.”

The Chairman states “this ground is legalistic and not appropriate for judicial review,” adding, “it is simply not arguable that this finding is ultra vires.”

He says, Mr Picardo’s motives and the impact of those actions on Mr McGrail “were at the very heart” of his decision to retire.

Conclusion

The defence concludes that Mr Picardo is “not entitled to any remedies” in circumstances where the grounds for judicial review are not arguable and that permission should be refused, or the challenge should be dismissed.

The defence was filed by Julian Santos KC and Hope Williams of chambers 5RB.