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Findings in full of the Randall and Berllaque case
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In his judgment yesterday on the Randall/Berllaque case, the Chief Justice Derek Schofield said that the claimants have proved their claims "and I shall adjourn the matter to enable me to hear argument on what orders I should make on my findings."
The claimants were two officers from the Gibraltar Services Police, Robert Randall and Pepe Luis Berllaque.
The findings by the Chief Justice follows:
Findings
If the claimants were endeavouring to alleviate the suspicions against them they did not succeed in this Court. Berllaque?s responses in cross-examination to questions about the taped conversations he had and his evidence that he was simply trying to go with the flow of conversation so as to bring Sisarello out was unimpressive. Randall was a more impressive witness in the box, but that may well be because he is more artful. Nor were his scatter-gun allegations against other officers of the GSP particularly impressive. His explanations for his actions before his arrest, that he was conducting his own investigation, seems unlikely when viewed objectively. Be that as it may, I must not lose sight of the fact that there is suspicion about the provenance of the tapes, recorded, transcribed and submitted as they were by Ruiz and Nunez. Furthermore, I did not hear all the evidence for and against the claimants regarding the thefts and I was not conducting a trial of the issue whether or not the claimants were guilty of theft. The claimants came before me, and remain, innocent men and had a right to expect a fair disciplinary process to be conducted by the defendant.
Jordan, Friel and Lyons impressed as being dispassionate witnesses who were merely doing their best job given the limits of their brief. Jordan, who was in charge of the investigation until the report stage, impressed as being an experienced and forthright officer. The only criticism one could make of the investigation by the MDP officers is that, because of circumstances beyond their control, the final report was made and submitted by Lyons who did not have conduct of the important part of the investigative process. Furthermore, she did not have the direct input of Jordan when she prepared her recommendations, although, of course, she did have Friers input. The Attorney-General counselled Jordan to ensure that all his reservations about the credibility of the GSP be contained in his final report and it did not come across to the Court that these reservations were fully taken on board by Lyons. It is, perhaps, a smallpoint, but worthy of comment, that Lyons did not seem to appreciate that Jordan did not regard the allegations of gambling by Randall as very serious.
Jordan testified that in relation to his investigation he did not trust any member of the GSP, and that would include Ruiz and Nunez and, indeed Durante. That would also include the claimants. An exception, it seems, was Brooks. Jordan recorded statements from around fourteen GSP officers as well as from Randall, Berllaque and Sisarello. As well as the claimants I saw only four GSP officers in the witness box. However, I have had the opportunity to assess a great deal of written material. Nothing that I read or heard leads me to the conclusion that Jordan was wrong in his assessment.
The only officer from the GSP to have come out of the witness box with any credit was Joaquin and that was because, I am convinced, that he told the truth but only after making false retractions of his first statement. In my judgment Joaquin did not break down for any other reason than he knew he had falsely retracted his statement and could not continue the lie. What, then, does one extract from that conclusion? That Sedeno had told Joaquin that the CCTV footage had been recorded and that tapes had been destroyed and that there may have been more cases of cigarettes in the Store after the investigation started than some of the evidence would suggest. This leads to deep suspicion about the evidence against the claimants. But more than that, it demonstrates the atmosphere within the GSP at the time of the investigation. Is it not a reflection of that atmosphere that Joaquin took Durante?s threats to mean he risked disciplinary action if he did not withdraw his statement that there were tapes in existence and that they were destroyed and that there were cases of cigarettes in the Store after the initial investigation was commenced?
Mr Dumas, for Randall, made what I considered a telling point about the existence or otherwise of the tapes. Whilst Jordan had said the existence and destruction of tapes was an issue which went only to credibility, Mr Dumas pointed out that there would be no reason for any CCTV coverage of the Store after the theft was discovered if all the cases of cigarettes had gone. Before leaving this point there is one item of evidence which I found particularly telling. The CCTV cameras were installed in the Store on the evening the theft wasdiscovered. In his witness statement Ruiz had to cover the question of why there were no video recordings made. He said that the investigators only intended to monitor the screen when Randall was on duty. Durante?s evidence was that at that stage he did not suspect any particular person or persons. Ruiz? evidence means that Randall was a target of their investigation from the very first day, which is consistent with the claimants? case. This would not be beyond the bounds of possibility given the bad history between Randall and his colleagues. The alternative explanation for Ruiz? evidence is that he was giving a false explanation for failing to install recording equipment, which leads one to suspect why he should do so.
Durante testified that there was no video recording. His conclusion shows a firmer approach to this aspect of the case than Jordan. But Durante was anxious to tell the Court that the officers conducting the original criminal investigation were beyond reproach. I came to the same conclusion as Jordan, that Durante?s motives are self-serving. It was an extraordinary piece of evidence that he would have preferred the original investigation into the thefts to have been by way of disciplinary process. This suggests that he does not regard GSP officers to attract the usual criminal liabilities. Is it any surprise that this moral attitude seemed to have permeated down to certain members of his Force?
It was an equally extraordinary step for Durante to appoint officers who must have themselves been suspects to investigate the theft in the first place. They most certainly were not going to investigate themselves and had the opportunity to suppress evidence and lay false trails. An independent team of investigators should have been appointed in 2001. From all that I have seen and heard it is not surprising that the Attorney-General decided to take what is an unusual step in this jurisdiction and enter a nolle prosequi. There is some suggestion that the Attorney-General may have had his eye on his exposure to costs as much as on the evidence, but whichever way one looks at it he clearly did not think much of the chances of a prosecution succeeding.
Was it reasonable, for a disciplinary process to be embarked upon after the withdrawal of the criminal charges? It is important to separate the decisions of Durante from those of Command in this regard for the motives of the two maynot have corresponded in all respects. It is clear from the evidence that Command had overall control of the situation because it could have withdrawn support for any disciplinary action Durante took.
It is easy, with the benefit of hindsight, to say that at the stage of withdrawal of the criminal charges it would have been prudent for Command to have ordered an independent outside investigation into the whole situation of the GSP. This is what the claimants urged from a very early stage, but, of course, Command were not obliged to bow to their wishes in that regard. If Command had sought the views of the Attorney-General, as one would have expected them to do, it would have known that all was not well with the GSP. However, I am unable to say that at that stage it was unreasonable for Command to go Durante?s route of a disciplinary investigation conducted by independent outside investigators. The nature of the investigation, however, with Randall, Berllaque and Sisarello as the ?targets, rather than a completely independent investigation into the thefts, does not sit particularly comfortably. Be that as it may, Command were in a difficult position in that they had three police officers against whom there was evidence of theft still within the Force. They could have dismissed them then and there, but a fairer approach, perhaps, was to allow an independent disciplinary investigation to take place.%
As I have said, I am sure that Jordan and Friel did their best and acted fairly and reasonably in their investigations. But this was three years after the thefts and witnesses had already given their statements. Witnesses could not be expected to retract them otherwise they could face criminal charges. Also the trail of evidence could have been altered and at least one important witness had died. Jordan soon came to the conclusion that the original investigation was seriously flawed in that it was conducted with a view to establishing Randall and Berllaque?s guilt. He began to share the Attorney-General?s view of the witnesses and the serious flaws in the evidence. He should have communicated his concerns to Command and from the evidence he did.
It is as well here to pause and look at the nature of the disciplinary process. The investigation was conducted by an independent team from outside the GSP. The disciplinary hearing was to be before a independent board composed of officersfrom outside the GSP. Nonetheless, the person-who was to decide whether the investigators recommendations were to result in charges was Harris, an officer of the GSP. Harris was subjected to the same atmosphere within the GSP as Joaquin. Perhaps he is made of sterner stuff that Joaquin, but any decision made by a member of the GSP in connection with this case must be tainted by what was going on within the Force at that time. His position, in relation to deciding whether the disciplinary hearing was conducted was similar to that of the Attorney-General in relation to the criminal prosecution, but without the same objectivity. Harris cannot have been totally independent so as to come to an objective decision. If confirmation is needed of that conclusion we only need look at his decision not to give advice to Ruiz in? the face of Jordan?s recommendation to do so.
Once Jordan, the outside investigator, began to voice his reservations about the quality of the evidence against Randall and Berllaque and the deeper underlying problems within the GSP Command should have had reservations about the continuation of the disciplinary process. It is then that an element of unreasonableness in Command?s approach begins to set in. I am sure Jackson inherited a difficult situation and Berllaque and, particularly Randall, failed to impress him with the allegations they made were not helping decision-making. However, I was surprised that Jackson seemed unaware that there had been calls for an independent external inquiry into the goings-on within the GSP when that is a thread running throughout the claimants? submissions in writing and in the pleadings in this case. Once it got to the stage of the GSP charging Randall and Berllaque in my judgment Command had ceased to act reasonably fairly and responsibly towards them.
The investigators had recommended that disciplinary charges be laid against the claimants. What was then needed was an objective assessment of whether it was right and proper for those charges to be laid. Command left it to Harris to make that assessment within the Disciplinary Regulations. It then supported his decision. But, as I have pointed out, it was impossible for Harris to give fair and objective consideration to the evidence to be presented to the disciplinary board. And what was that evidence? Precisely the same evidence, and no more, upon which the Attorney-General declined to pursue the criminal charges in 2004.Command should have taken control of the situation and withdrawn support for the disciplinary process once they heard Jordan?s reservations. It most certainly should have stopped the process before Harris framed the charges.
I appreciate it could be argued that by the time the decision to charge the claimants disciplinarily was taken the relationship of employer and employee had broken down. However, if Command had heeded the claimants? calls for an independent investigation into the whole situation and not just a disciplinary investigation targeting them, the position would not have reached where it is. Command could have taken control and avoided the breakdown. Randall?s allegations to Jordan came when the disciplinary process was well underway and when he and Berllaque had been suffering from stress for some time.
In continuing with the disciplinary process to the stage where charges were laid against the claimants the defendant continued with a process calculated seriously to damage the relationship between it and the claimants. It reached a stage where there was no reasonable and proper cause for the continuation of the disciplinary process.
I am satisfied from the medical evidence before me that the claimants have suffered damage to their health as a result of this continued process and I shall, perhaps, hear evidence as to financial loss.
In my judgment the claimants have proved their claims and I shall adjourn the matter to enable me to hear argument on what orders I should make on my findings.
D Schofield Chief Justice
22 February 2007
Command statement
British Forces Gibraltar says it is is both disappointed and surprised with the Chief Justice?s declared judgement today which found in favour of the claimants Mr Randall and Mr Berllaque.
The Command is now considering its options, which clearly includes an appeal. In these circumstances it would be inappropriate to make any further comment at this stage.
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