Thursday, 23 September 2010

The Police in Spain

A quick judgment about the incident in which, it is reported, two Royal Gibraltar Police (RGP) Officers went into Spain and searched a house is not called for. One should not jump to immediate and unsupported conclusions attributing fault to any RGP senior officers absent evidence showing that the operation was sanctioned (officially or unofficially) by such an officer. The Gibraltar Police Authority (GPA) have requested a report of the incident. Once this report is available one would hope that, if appropriate, disciplinary action will ensue.

That the report commisioned by the GPA is to be prepared by the RGP itself could raise questions but again patience is called for. Pre-judgment of the Report will only skew and undermine proper and prudent comment and criticism once it is made public, if indeed any comment or criticisms is warranted.

What is not forgivable, however, is that such an incident has occurred at all especially as , apparently, there are established procedures to cater for cross-border police cooperation. Unforgivable not least because of the embarrassment that it has caused Gibraltar. Embarrassment that is magnified by the reaction that there is in Gibraltar following incursions into Gibraltar waters by the Guardia Civil. At least, usually, the Guardia Civil have the excuse of "hot pursuit", however weak that excuse might be. It is apparent that the actions of the two RGP officers was pre-meditated and planned.

The Chief Minister is to be congratulated for having publicly apologised knowing how unpopular that apology will be received by the electorate. It also begs the question of whether Constitutionally the apology has come from the right person bearing in mind the Governor's constitutional responsibility for the police.

An apology was inevitable, Gibraltar has received apologies when there have been incursions by the Guardia Civil, reciprocity of behaviour was essential. Further, I trust and hope that the Spanish authorities will take the same view as was taken when the Guardia Civil landed on our shores and not prosecute the offending officers. If there is no reciprocity and a prosecution of RGP officers in Spain were to ensue, the harm it will do to cross-border relations at a local level will be incalculable.

Whatever may follow on from that incident, I remember, as a teenager and young man, that during the closed frontier era my elders considered it of the utmost importance that Gibraltar and its institutions should behave impeccably in the face of the greatest provocation. It was important, not least, because it was considered to be an example of democracy in the face of the acts of an unforgiving dictator, Franco. Spain has moved on a long way since those days but the views held by those elders still hold good today. Gibraltar and its institutions must, and in fairness usually do, behave and act impeccably,

Hopefully this unfortunate and embarrassing incident is an isolated one.


  1. I agree with most of your comments but Find it difficult to understand your view of the following.

    If there is no reciprocity and a prosecution of RGP officers in Spain were to ensue, the harm it will do to cross-border relations at a local level will be incalculable.

    Are we in Gibraltar going to turn a blind eye to crime committed by government authorities or police on either side.
    When we are going to learn?
    Think long term.
    Lawless system.

  2. It was right to apologise. It's also very significant politically and diplomatically.The Chief Minister deserves our full respect for having done so on Gibraltar's behalf. We are inching our way forward from the 2006 Constitution.

    But the reality of the situation is more than just embarassing.

    The debate is about our law enforcement and investigating officers acting unlawfully during a criminal investigation and evidence gathering exercise for use in a court of law.

    This raises fundamental questions and concerns about the operational effectiveness of the RGP: was this an isolated incident? Does it happen locally and, if it does, how many cases come to light? What if they do not come to light? Where is the independent and full-time legal monitoring and quality control of police investigations, evidence gathering, charging and prosecution of cases?

    It's all about basic and core standards or lack of them instituionally speaking. It's also about an indequate and antiquated system.

    Gibraltar badly needs a Crown Prosecution Service similar to the one in England & Wales:
    "Strengthening the prosecution process to bring offenders to justice: providing an independent prosecution service, working with the police from the outset of a case to its disposal; advising the police before charge; building and testing the strongest possible prosecution case and presenting that case fairly in the courts on behalf of the public."

    Perhaps we prefer the Continental system of Investigating Judges that legally direct police investigations, arrests, evidence gathering and charging. They do not conduct the prosecution case in court. That is done by another independent department with different legal obligations.

    Whatever the solution, it's no solution keeping what there is. "The Police in Spain" is one of the worst examples of a weak and failing system.

    Peter Caruana should now act with the same rapidness and leadership, evidenced by his apology to Spain, in overhauling an institutional problem instead of allowing the focus to wrongly fall on the officers concerned, senior officers or the commissioner.

  3. I agree that the reciprocity that I have referred to is intrinsically wrong in principle but political and diplomatic considerations (or even expediency) led (in my view wrongly) to the release of the Guardia Civil in the Westside incident. The same consideration should be applied by Spain in dealing with the RGP officers who broke the law in Spain. This will avoid cross-border tensions.

    A question that needs to be considered is what to do in the future? The answer is simple, neither side should transgress. If either does the full force of the law should be applied.

    I believe that we do have an independent prosecuting authority. It is the AG's Chambers. I agree that their involvement, like that of the CPS in England, should start earlier in the process. Unfortunately, the reality is that this alone will not cure the type of ill that we are discussing. What is required is strict adherence by public authorities to the law and rule. I fear, that these bad practices transcend the RGP into much of the public service, where the concept of the RULE OF LAW is little understood. It is a simple concept. In essence it means unless an act is permitted by a law a public authority does not have power to do or perform any particular act so it should not be done or performed.

  4. Fred says:

    Robert, I agree with what you say about the Rule of Law. However, the Rule of Law itself has to rest on a mature culture of self-restraint, moderation, sound judgement, wisdom and professionalism.

    It is far from clear that the RGP, and other elements of the public authorities, are possessed of these essential qualities.

    By extension it could also be said that our professional classes reek of pomposity and arrogance, which leads them to make very poor judgements, and then refuse to explain or apologise(I think this is what previous posters may have been alluding to when discussing the leadership of the opposition).

    Perhaps in this context Mr Caruana's micro-managing style is more understandable.

  5. No one doubts the independence of the AG's Chambers. It is a constitutional duty and they work very hard to maintain it. That was not the premise of the argument.

    "Independent" was used in its context and with wider constitutional implications for the division of labour and in the Office of AG for a full-time, exclusive and dedicated service that finds its raison d'etre in clear legal principles and objectives enshrined in the law like the CPS. That can only benefit the public interest and avoid these kind of situations. They were forced to do it in England & Wales.

    The answer to: Where is the independent and full-time legal monitoring and quality control of police investigations, evidence gathering, charging and prosecution of cases? is that there isn't one which covers all these stages, in all cases (other than minor ones) and at all times!

    That is not the fault of the AG's Chambers or the RGP. It is an institutional or constitutional gap that requires change for the benefit of the police, the AG's Chambers and the public because the situations RGP have to deal with are increasingly more challenging.

  6. PART I

    I agree with you that adhering to the Rule of Law is a paramount obligation if we are to live and prosper in a democratic society as freely as we are able to but, that many do not understand it or have cared too much about it is also true.

    Perhaps this is a significant feature of Gibraltar's residual political immaturity and perhaps it's also part of our cultural attitude through ignorance or misconceived political ideas born from our sheltered position or as 'victims' of colonialism or perceptions of both variants from different standing points.


    The Rule of Law as a Gibraltarian concept is narrower, more elaborate and complicated than in England & Wales because it has no drastic and obvious historical roots (as in other countries) nor it is legally rooted in the UN doctrine of full self-determination as currently understood and applied:

    (1)We enjoy, through the UK, international rights but also have obligations to comply with and observe - UN, EU and ECHR. We cannot pick and choose which ones we like. The UK has done that for us (with or without consultation).

    (2)The Gibraltar Constitution is the main and direct fountain of all our rights and obligations at all levels in addition to (1) above.

    (3) What the Constitution does not allow cannot be done subject to (1) above.

    (4)What the Constitution allows must be done strictly in conformity with what it expressly provides and in its totality as a legal document, in accordance with the common law and equity and (1) above.

    (5) Local laws (which is what you are referring to) are subject to (1) to (4) above.

    (6) Gibraltar does not have any international status other than as a colony or overseas territory of the UK. However, indirectly through the UK we have the same rights and responsibilities as any other country in Europe (subject to minor variations in the EU)and the UN but subject to legal restrictions in accessing certain important institutions. That is why the UK is our international interlocutor and we are in a weak legal position to directly defend our interests like any other country.

    (7) Gibraltar does not have any direct participation in the UK Parliament or Government. This is a legal and democratic weakness. It is done through bilateral diplomatic channels through contacts and friends in the UK and the Governor's Office.

    (8) We cannot really defend ourselves militarily against foreign agression and nor can we provide for ourselves the necessary levels of security and protection in the face of very serious crime and terrorism. That big responsibility has always been assumed and undertaken by the UK (with or without Gibraltarian involvement) and, without any real public awareness, jointly with Spain.

    (9) Gibraltar is a unique place but not automatically special. The Gibraltarian Rule of Law, properly understood and applied in its fullest spectrum, is what will make Gibraltar special for all its people, special internationally at all levels, politically, diplomatically and in business.

    (10) It must be our trade-mark, shield and sword.

    (11) The extent to which we adhere or depart from that standard at all levels will give us the true measure by which we succeed or fail within Gibraltar and internationally. The police in spain case provides a very simple and specific example of the latter.

    (12) It ultimately determines a politician's success or with any other person in any other sphere of life...and fundamentally the well-being and prosperity of a society or its sufferings, pains and misery at all levels. That is the crux of it from an entirely domestic point of view.

  8. PART IV

    Peter Caruana QC has made a major contribution to many aspects of the Gibraltarian Rule of Law, whether many people like it or not and, whether they want to recognise it or not(through lack of comprehension, other political affiliations or other reasons). This is irrespective of the mistakes he has made through the years. He is human too.

    Humility in correcting those mistakes and advancing the Gibraltarian Rule of Law for the benefit of all Gibraltarians and all sectors of this community AT ALL LOCAL LEVELS is the greatest challenge that awaits Peter Caruana before the next election and, if elected, for the final stretch of his political career.

    That is the way I understand it in general terms and overall. I wanted to share it with you and other bloggers.

  9. Anon

    Where's Part II??

    A previous Anon

    You said Gibraltar badly needs a Crown Prosecution Service similar to the one in England & Wales, or the continental system of Investigating Judges that legally direct police investigations, arrests, evidence gathering and charging.

    Yes, I would broadly agree with you. In the meantime, recent events have amply demonstrated that Alan Castree should have been replaced by successive UK expat Commissioners. Just as Gibraltar is too small for a jury system to operate fairly it has far too small a population for a Gibraltarian to be able to perform many of the top jobs.

    We already have expats in the top jobs at the GHA, Port Authority, Maritime Authority, Law Courts (CEO), FSC etc etc. We need an expat as Commissioner. Not that Ullger and Wink haven't tried hard to do a good job. They have, and should be commended for doing so. But Gibraltar is too small for one of us to be allowed to function fully and effectively as Commissioner of Police. We need to draw from a much broader population pool - and from among those who are unconstrained by being 'local'.

  10. When will we ever see senior officials of public services(in this case the police) resign or sacked for incompetence.
    Only a some months ago substantial cocaine kept in a store just a few metres from the commissioner's office disappeared. An officer falsified a police statement and the case callapsed. Now we have the Alcaidesa house search by RGP fiasco.
    Come on, let us admit that the RGP is not that good a force and some of their senior officers should not be there.
    Sometimes we defend the undefendable, because we feel sorry for these highly paid people or we do not want to admit that in some cases our top officials are not that great.
    We only get rid of 'foreigners or ex patriats'

  11. The Law and Legal systems work in a similar way to democracy; though as a system the Law acts more to restrict the power of individuals over each other.

    Many people like to view the Legal System as a sort of Moral System and view it as the ultimate authority in life. Still, any real thought on the matter reveals that Law is little more than words and ideals, without someone to enforce them, this has led to a great many problems in our society.

    No one including the state is above the law and no one can be excused saying they were not aware or uninformed of the law.

    In most countries and in particular Gibraltar the law is mainly applied to the general public.

    Peter Caruana should personaly as Prime Minister accept reponsibility for the illegal action of the RGP.


  12. Fred says:

    Anon 15:58 - I agree.

    Anon 15:57 you said: "nor can we provide for ourselves the necessary levels of security and protection in the face of very serious crime and terrorism." - Hmmm... you do not know the people you have. Unfortunately the RGP, GDP, Customs, etc need a shake-up and change of leadership, but there are some damn good people there who know this business well.

  13. TO ANON 12/6/10 AT 00:33

    I was not critical of our 'boys' at all and you have misinterpreted the fundamental essence and reality of my statement.

    You underestimate MI5 and MI6's importance in the context of Gibraltar. That is why, constitutionally, the UK retains direct responsibility for security!!!

  14. Not to mention HM's Navy for territorial disputes etc etc etc and the incorporation of the RGR as part of HM's Territorial Army and Gibraltar's permanent resident battalion of the British Army!!!

  15. The essential issue, ANON 25 September 2010 19:40, is not that expats should do the top jobs because we cannot reasonably draw from our own local resources.

    I must disagree with you.

    If anything, what it might show is that some of the local appointees are not always and in all circumstances up to the demands of their public offices.

    That is not controversial at all, at this stage of our development, when the Gibraltarians have just inherited many of these posts. The mistakes of the new-comers ought to be the lessons of their successors.

    Haven't former colonies made similar mistakes and worse than ours so far?

    The real debate for Gibraltar is about how to devise a strict system, based on objective criteria and merit, guaranteeing that the best local people are appointed to the top jobs in their respective fields and eradicating those vestiges of patronage and every other wrong reason that might survive to exclude them.

    We cannot continue turning a blind eye to our real failings anymore. Self-determination is also about assuming this kind of internal responsibility in the public interest.

    We have been given rights but they also carry corresponding obligations.

  16. And without forgetting, Fred, that the Gibraltar airport is a facility of the RAF with MoD permission to use it as a civilian airport. Look what the Cordoba Agreement states:

    "The UK Government is responsible for all international obligations including aviation safety and security relating to Gibraltar Airport, as laid down in the pertinent rules and regulations of ECAC/ICAO, Eurocontrol and of the EC. Recognising the fact that Gibraltar Airport is a military airfield available for civilian flights, the Permanent Joint Liaison Committee will be appropriately notified of any interruption to the arrangements, including flight restrictions caused by military use."

  17. But don't we have a Director of Civil Aviation and didn't the Govt recently advertise for a CEO to run the new "Civil Airport"?

  18. Which is consistent with its civil use.

  19. Completely off topic here, but with so many lawyers coming onto this blog...If I may ask..

    Is it legal for an employer to ask for a Mug shot to be attached to CV / Application form?? I can understand if its a modelling type job. The job in question is an administrative post with Government??

    Not wanting to create a debate here. Just chancing on maybe getting a legal perspective.


  20. The bottom line (going back to the original thread) is should the commissioner go?

    I think that he should but I think that when the GPA report is complete we might have a bit more of 'you don't bite the hand that feeds you'.........

  21. Anon

    Have never heard of a mug shot having to be attached to a CV / application form for an administrative post with Government. Published ads never contain this requirement. Where have you seen this?