Polaine stands by advice

| 06/01/2009

(CNS): Despite his advice leading to an unlawful arrest, Martin Polaine (left), who was the legal adviser to Martin Bridger, the Senior Investigating Officer of the Special Police Investigation Team (SPIT), has said that he believes the information he offered to Bridger was sound. However, Polaine told CNS that he accepted responsibility for that advice if it was now seen as incorrect. “If, as others have now concluded, the advice was wrong, then the blame for it does indeed rest with me,” said Polaine.

Although he is no longer advising SPIT, Polaine, who is a director of Amicus Legal Consultants Ltd in the UK, explained his grounds for offering the advice while working with SPIT last year. Polaine said that he believed that the arrest of Grand Court Justice Alex Henderson in September of last year for Misconduct in Public Office was lawful, not because the arrest falls under the penal code as he acknowledged it does not, but because it carries, at least in the UK, a potential maximum punishment of life in prison.

“I was of the view that misconduct in public office was an arrestable offence,” Poliane said, explaining that, while under English law the offence of misconduct in public office is a common law offence, it is at large and carries a maximum sentence of life imprisonment. Polaine noted that as the Criminal Procedure Code states that offences against other laws without prescribed power of arrest but which are punishable with more than six years imprisonment are arrestable, Misconduct in a Public Office was indeed an arrestable offence.

“It was my view that the phrase ‘other laws’ includes the common law,” he added. “On that basis, misconduct in public office would be an arrestable offence. I gave the advice in good faith, believing it to be sound. However, the Attorney General and his legal team have concluded that the offence was not arrestable. They have not sought to discuss their reasoning with me and I do not know, in any detail, what their reasoning is.”

In Henderson’s second Judicial Review, Sir Peter Creswell made it quite clear that he considered Bridger’s legal advice to be inadequate and suggested that seeking advice from an expert in British law regarding Misconduct in a Public Office in the Cayman Islands was a failure on the part of Bridger and his team. He suggested that arresting anyone for an offence that was not an arrestable offence was a fundamental policing error.

Polain noted that it was, however, not his role to advise that an arrest take place and that he did not advise Bridger to arrest or not arrest Henderson. “I advised that the offence was arrestable and that there was sufficient evidence and material from which a reasonable suspicion could be drawn that an arrestable offence had been committed,” Polaine told CNS.

Since both the search warrants and the arrest of Henderson were declared unlawful by Cresswell during the two judicial reviews, the advice by Polaine has proved to be the scapegoat for both SPIT and Governor Stuart Jack. In a statement released following the first review, Jack defended Bridger and stated that he was acting on the advice of his legal adviser, which was confirmed during the review as being Martin Polaine.

During the second review, the Attorney General’s representative, Douglas Schofield, who was forced to take up the reins of the case after the first judicial review, found the search warrants to be unlawful and the unraveling of any case against Henderson began. He stated that Bridger did at the time believe the advise from Polaine was accurate and based his decision to arrest Henderson purely on that advice.

Polaine came under the spotlight when, during the first judicial review, his legal status in the Cayman Islands was questioned by Henderson’s legal team. They revealed that Polaine had not been called to Cayman Islands bar even though he was in the court room and clearly offering  advice to the legal team representing SPIT during the hearing.

According to the Amicus website, Polaine is an expert in anti-corruption and has worked on a number of transnational cases. He is also one of the authors of Corruption & Misuse of Public Office (Oxford University Press, 2006).

 

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Comments (13)

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  1. Bob says:

    All I’m saying is that the arrest was ruled illegal only because of some law technicality and there’s a need to put things in perspective. Sure, someone will have to take the blame for that poor mistake I will agree and it needs to be the last time it happens, but my point is that the investigation shouldn’t be thrown out as a result. Its scope is broader than this unfortunate episode. Let’s not forget its successes too, and what it has exposed.

    • Anonymous says:

      Bob,

      I think you need to read the Chief Justice’s comments:

      “The misconduct alleged in the arrest was not and could not have amounted to an offence in the first place. Not only was the arrest therefore unlawful, it was also without any reasonable or proper basis. It is fundamentally important that the public should understand this, otherwise the impression might linger that although misconduct in public office may not be an arrestable offence, some such offence was nonetheless involved,”

      I think he is saying it was not some mere "law technicality".

  2. Anonymous says:

    Off you go mate!

    And put the governor and Bridger in your suitcase. Go back to your corrupt and dreary empire, I mean country.

  3. Anonymous says:

    I can even begin to dicribe my absolute disgust with the governor and his incomptence or attempt to destroy our island!!

  4. Bob says:

    I think that the big picture is being lost in the current events. Lets not forget why this investigation came about. If it wasn’t for the deep and troubling problems inside our Police Department and Government, this saga would not have emerged.

    It`s important to keep our eyes on what’s at stake here: the integrity of those who keep our islands safe and honest, and understand that bumps on that road are to be expected. The blame game is a dangerous one; if one decides to go that way, at least blame the corrupts, not those fighting them in good faith when they make mistakes.

    • sick of excuses says:

      Bob!!

      You should be the last one to talk about missing the big picture!!!! did you read the article????? the findings were that the police acted in an ILLEGAL MANNER! that is not a mistake and even if it was, no one in the private sector would keep their job and would be dismissed from the bar and or force! as a person in that position of power carries a level of expectation from the public he/ she protects………

  5. a Guest of the Cayman People says:

    Martin:  I trust your professional liability insurer will cover all of the damages payable as a result of any bad advice you may have given.  

    I mean, you did arrange for professional liability insurance to give legal advice on Cayman law and to work in this jurisdiction, didn’t you?

     

  6. Anonymous says:

    A point few, if any, seem to have spotted is that Mr. Polaine appears not to be a practising lawyer in the UK.  He certainly has never been admitted as an attorney in Cayman.  How on earth can he give any legal advice if he is not a practicing lawyer.

    One assumes that between Bridger & Jack they might have had the inspiration to check whether trhey were instructing someone competent to advise – or maybe they chose to instruct someone who was as incompetent as themselves

     

  7. noname says:

    Your "legal jargon" attempt’s to try and "twistthe facts" to save face. However, the fact remains that you and Martin Bridger will cost me and the Caymanian tax payers millions of CI $$$$$$$$$$$$ to settle a law-suit that you and SPIT caused to be filed from Justice Henderson, whose rights were violated by your actions.

    What we would like to know is, how is it that you were legally allowed/permitted to advise for "gain" when in fact you did not have a work permit or a licence to practice law in the Cayman Islands???????

    Perhaps you can also advise the Caymanian tax payers how much money was paid to you or your consultancy firm from the Governor’s Office for your ill-advised services as well. ????????

    We the Caymanian tax payers patiently await your prompt response.

     

  8. Anonymous says:

    Okay so now !

    That we know  who is taking  the Blame for this Grave Error  let him pay the Damages. and not the Caymanian People.

     

  9. Anonymous says:

    All hope is that both the Head of Immigration and the Chief  Justice are now studying the events of last year with a view to deciding if Mr Polaine’s conduct (or that of other members of the Operation Tempura team) constitutes an arrestable offence (or offences) under Cayman Islands’ law.

  10. Martin Polaine, on behalf of Amicus Legal Consultants Ltd says:

     

    Further to the above CNS article, and to assist readers, the rationale for forming the view that misconduct in public office is an arrestable offence under Cayman law is as follows:

     The First Schedule to the Criminal Procedure Code (entitled ‘Mode of Trial and Arrestable Offences’) provides for a list of offences under the Penal Code that are arrestable without a warrant.

     

    Under English law, the offence of misconduct in public office is, however, a common law offence. It is also a common law offence for the purposes of Cayman law and, therefore, falls outside the Penal Code. This is made clear by section 2(a) of the Penal Code which provides: "Nothing in this Law shall affect – (a) the liability, trial or punishment of a person for an offence against the common law or any other law in force in the Islands".

     

    As a common law offence, the punishment for misconduct inpublic office is at large and carries a maximum sentence of life imprisonment:

     

    The last page (page 80) of the First Schedule to the Criminal Procedure Code, states: "Offences against Other Laws where power of arrest is not prescribed: If the Offence is punishable more severely than with six years; imprisonment then such offence is arrestable". It was my view that the phrase ‘other laws’ must include the common law (see the wording of the section 2(a) Penal Code provision, above); on that basis, misconduct in public office would be an arrestable offence.

     

    As to section 38(1) of the Penal Code, which provides "When, in this Law, no punishment is especially provided for any offence it is punishable with imprisonment for four years and a fine", it must be the case that section 38(1) refers only to such offences as are contained in the Penal Code itself, and does not refer to common law offences. Were it to be otherwise, section 2(a) of the Penal Code would be otiose.

     

     

    • Anonymous says:

      Readers might also find this link helpful. The common lawoffence is clearly reserved for cases of serious criminality where there is no statutory offence that would attract appropriate penalties. This is also evident from Mr. Polaine’s point that it carries a maximum sentence of life imprisonment.  It is not clear what evidence was before Mr. Polaine that rose to the level necessary to reasonably justify such a charge in respect of Justice Henderson.  

      http://www.parliament.uk/commons/lib/research/briefings/snpc-04909.pdf