Tempura lawyer admits error

| 30/08/2009

(CNS): The legal advisor to the Special Police Investigation Team (SPIT) of Operation Tempura has been hauled before the UK Bar Standards Board and admitted fundamental errors regarding the advice he gave to SPIT. The senior investigating officer, Martin Bridger, had used the advice given by Polaine to arrest Justice Alex Henderson, which resulted in a damages award to the judge of $1.275 million after Sir Peter Creswell ruled the arrest was unlawful, paid by the cash strapped Cayman treasury.

Polaine has sent a letter of apology to the Grand Court Judge and now awaits the decision of the UK bar regarding his future as a lawyer.

Polaine was hauled before the board as a result of complaints made by Justice Henderson about the advice and conduct of Polaine over the course of Operation Tempura as well as the UK lawyer’s statements made to the press following the judge’s exoneration by Cresswell. Justice Henderson claimed Polaine should have known that his advise to arrest him was wrong, that he had made deliberate misrepresentations to a Justice of the Peace (Carson Ebanks, who had signed the warrants), had placed himself in contempt of the court by continuing to advance his views in the press in opposition to a Judgement of the Court, and caused damage to Henderson’s reputation in the Cayman Islands and abroad.

According to parts of the hearing before the board released by the Chief Justice’s office, Polaine admitted that there was insufficient evidence to justify a “reasonable suspicion” that Justice Henderson had committed any offence whatsoever.

“I gave my advice in good faith, but have to concede, in the light of that ruling, that my judgement has been shown to be poor and that I was incompetent in the advice I gave,” Polaine stated.  “I recognise that my erroneous advice has had a profound effect on Justice Henderson, his family, and the Cayman Islands as a whole.  I apologise unreservedly.  I also accept that my poor standard of professional conduct in this regard has had a detrimental effect on the reputation of the Bar of England & Wales in the Cayman Islands.  Again, I offer my sincere apologies.”

Polaine reportedly admitted to failing in his professional duty to make full disclosure to the JP including the previous ruling of Chief Justice Anthony Smellie in resonse to an application by SPIT to search the home of former police commissioner, Stuart Kernohan, which had been refused. The lawyer said that he had formed the view that the earlier ruling by the chief justice was not relevant or of any assistance to the JP but went on to concede that his judgement in that regard was poor. “I apologise to the JP and to Justice Henderson and his family.  I accept that my advice in this regard was, once again, wrong, but it was made honestly.”

Polaine admitted that hebeen not called to the Cayman Bar so should have confined his advice to matters of English Law.  “I recognise, however, that on that occasion, I have gone beyond this and have advised and commented upon Cayman Law and procedure,” he stated. “I was introduced to the JP as a lawyer …. in retrospect, I should have explained that I was not qualified in the Cayman Islands.  I accept that my omission to do so created a misleading impression.”

On the matter of the work permit, he said that he had been advised that he did not require one as he was contracted to the Cayman Islands government. He said he was not engaged by the attorney general and was not a prosecuting attorney but an advisor.

Polaine said he accepted “unequivocally, on the basis of Sir Peter Cresswell’s ruling that there were not grounds for such suspicion of misconduct, and if he had inadvertently given the impression when he spoke to the press after the incident, he was sorry.

He added that his intention was in the interest of giving the Cayman public an explanation. However, Justice Henderson had told the board that a fair reading of all of Polaine’s press comments would satisfy an objective reader that he was asserting the correctness of his flawed advice for his own reasons and not in the public interest.

Polaine conceded that he should not have spoken to the press and that he had risked the reputation of the Bar of England & Wales. “I recognise that, as Sir Peter Cresswell’s ruling shows, I have been found wanting in many aspects of this matter.  I reiterate my heartfelt apologies to all those who have been adversely affected,” Polaine said.

In his letter of apology to the judge, Polaine apologises for the upheaval and distress” and  admits “fundamental and far-reaching errors.” The UK lawyer says he failed the investigators, the government and the people of the Cayman Islands and, above all, the judge."

"I sought to carry out my responsibilities to the best of my abilities, but succeeded only in demonstrating poor judgment and flawed thinking. I deeply regret my failures in the above regard and, again, wish to express my unreserved apologies,” Polaine writes.

The UK board will be offering its decision on Polaine in the next 12 months, the CJ’s office stated in a release.

Justice Smellie also noted that the apology confirms that the “foray by Operation Tempura into the Judiciary was ill-advised and misconceived from start to finish.” Smellie said that included Bridger’s criticisms of the release of his own judgement in response to the request for a search warrant in the related case.

“This unfortunate chain of events is now a matter behind the country and behind the Judiciary, which will continue to maintain the very high standards to which the islands are accustomed,” Smellie added.

However, CNS understands that Polaine was also involved in advice offered regarding the arrest of Lyndon Martin, whose trial begins on Monday morning, 31 August, on charges relating to Operation Tempura.

Print Friendly, PDF & Email

Category: Headline News

About the Author ()

Comments (20)

Trackback URL | Comments RSS Feed

  1. Anonymous says:

    The Cayman Islands should seek compensation from the UK government for a) Justice Henderson’s damages, b) the costs of the tempura operation, c) the governor’s, Bridges & Polaine’s salary and d) the damage to its reputation generally worldwide ("investigating corruption of the Cayman Islands police, government officials, and its judiciary" indeed!  Now the headlines should read: "the utter incompetence of the British officials charged with overseeing the Cayman Islands!).  Since the governor, who is liable as employer, did not conduct proper due diligence before employing this lunatic Polaine or incompetent Bridger and the governor reports to the UK, the UK must be liable for the governor’s negligence.  All this money should take the Islands out of the whole for a couple of months until the economic reforms take hold.

    Secondly, the Cayman Islands should publicize Polaine’s admissions of his incompetence and how the British officials did not screen him, causing the Cayman Islands untold reputational damage, globally.  Perhaps it may recover some of the loss of credibility and bring back investor money.

  2. Anonymous says:

    I wanna see us spend that apology at Fosters (or pay civil service salaries)!

  3. Anonymous says:

    Right lets get some of the inaccuracies corrected.  Polaine was an employed Barrister.  As such he is bound by the Bar Code of Conduct but he offered services through a limited company.   He will be disciplined no doubt by the Bar Standards Board in due course.  In all liklihood he will lose his ability to practice.   He was brought in by Bridger who had worked with him before.  Bridger advised the Governor as such.   The British Government did not engage Polaine.  The Governor did on the advice of Bridger.    Bridger has got off scott free with a 200 k salary per annum without tax.  It is worthy of note that had the JP been given any PROPER training he would have known and askedsome questions about what search warrant he was granting.  Remember it was up to the JP to actually grant it.  Even after all this debacle there is STILL no mandatory and proper training for JPs on issuing search warrants other than a few sheets of paper which were written in about 1970.  This is wrong.  A person who has the power to issue a warrant compelling an individual to submit to arrest or search MUST receive training.  Someone ask why the AG and government has not introduced it.  CNS I do hope you publish this

    • Anonymous says:

      If you are looking to the AG to do something right then forget that, it will never be done.


      Because it may be "political".

      Any way what due delligence was done on Mr. Polaine?

      • Anonymous says:

        Problem is that the AG approved Polaine to advise SPIT. How do approve someone to provide Cayman Islands legal advice when he is not a Cayman Islands lawyer and is not being instructed by a Cayman Islands lawyer?  The AG’s dept also said that misconduct in a public office was an arrestable offence in respect of Deputy Commissioner Dixon but subsequently said it was not an arrestable offence for Justice Henderson. Did the AG know all about the Net News ‘break in’ beforehand, and if so how could his department approve a prosecution of Lyndon Martin on charges related to the ‘break-in’?  He is getting off lightly in all of this.

    • noname says:

      A JP should not be given powers to sign a search warrent. All MLAa are JPs.  With the new constitution coming to play, this power should be removed from JPs.

      • Anonymous says:

        Re a JP should not be given powers – this is frankly the most intelligent quote I have read on CNS Ever!  To allow MLAs who are part of the legislature to execute the powers of the executive and judiciary is a breach of the doctrine of the separation of powers which preserves the rule of law (the fundamental principle of governance in a truly democratic state.) 

      • Anonymous says:

        You are right although I suspect that the automatic granting of JP to elected politicians and some appointed ones is merely so that some of them will have something to put on their business cards.

        The ability of Cayman politicians to exercise judicial functions including the ability to authorise arrest and imprisonment probably violates the ECHR. Guernsey has already had this point litigated and confirmed. Would all criminal lawyers please take note of this in relation to the next warrant executed by a JP who is also a sitting politician.

  4. Anonymous says:

    This debacle shows why one-trick pony legal consultants don’t work and why established firms are better service providers – they are more accountable.  Polaine’s outfit presumably does not have insurance for Cayman law work which means they will have no insurance to pay for any claim for negligence.  Given the area of specialism of his organisation there had to be clear risk of providing too favourable advice to investigating authorities or forming too close a relationship with them. 


  5. Anonymous says:

    In addition to Polaine apologizing, The Governor should hold one of his famous live TV broadcasts and publicly apologize to the Caymanian people and to Justice Henderson.

    Then, if he was sincere, he would resign his office and leave, and be sure to take all the remnants of Tempura with him!


    • Anonymous says:

      He should be disbarred. He (or his insurance, if he has any) should have to pay the damages for his deliberate misrepresentations to a Justice of the Peace (Carson Ebanks, who had signed the warrants), placing himself in contempt of the court by continuing to advance his views in the press in opposition to a Judgement of the Court, and causing damage to Henderson’s reputation in the Cayman Islands and abroad. If that doesn’t get you disbarred I’m not sure what will and he no doubt got paid good money for his poor advice. Think he has thought about paying that back?…doubt it.

  6. Anonymous says:

    I assume that Polaine was engaged on the advice or recommendation of someone on the UK side. It is apparent that they due not exercise the due diligence that would be expected of any adviser. It can’t be a long stretch to find culpability in the UK Governement’s actions.

    This should be raised with the very same minister who is trying to force direct taxation on this Country so he is fully aware that the advice he is receiving is probably as tainted as the advice given to appoint Poliane.

    Surely there is an international court of justice with which this matter can be raised and to which Britain will be required to answer.

    I hope the British and internation press give this story the same front page coverage as they do to the fiction "tax haven" operations. At least we adhere to normal professional standards!


  7. Anonymous says:

    The present leadership of the UK Government through the Governor engaged  Bridger and Polaine.  Natural justice would usually mean that they would now have to be legally and financially responsible for the acts that they committed.  Of course that will not happen, because as in other matters, the UK Government has decided that when dealing with the Cayman Islands the actions of the UK Government are above the law and therefore above natural justice.

    Don’t get me wrong, I know that not everyone in the UK Government agrees with what was done and is being done, but even they will never admit it publicly and the UK Government will never make restitution unless they can be forced to do so by a competent and sufficiently powerful international body.

    They are now like parents who have lost most of their creditability.  Unfortunately, we are still a young country and need “parents”, but as the saying goes "who needs enemies with friends like these". Some friends! They should hide in shame and never presume to advise the Cayman Islands again until they have rebuilt their integrity and creditability, and above all, their trustworthiness.

  8. Anonymous says:

    And……if it was the UK Government that messed up (can think of other words better then messed up), why did we have to paythe judgement to Judge Henderson, why not the UK Government????  Still wondering why the Cayman Islands even had to absorb the cost for the investigation!!!, which I am sure alot others think the same way..I am sure the CI Government could use that money now.

  9. Anonymous says:

    The governor should be really proud right about now!

    • Anonymous says:

      The Governor, Polaine, Bridger, Gordon Brown  and the whole frigging brittish government should be brought before the world court and made to pay for the out rageous damage that this tempura opperation have caused our Islands, I for one has no respect for either one of them and beleive that we the citizens of the cayman Islands  should seek payment for the damages done. The world needs to see what is happening here, we are being strangled by the wicked  ones, and all of you loyal ones to mother country, take the wool from your eyes and see her for what she really is.

  10. Anonymous says:

    Can anyone confirm my understanding that Polaine was and is not even an active practicing member of the Bar of England and Wales?  I find no reference to him in the Bar Council Directory.

    I am curious if there is professional liability insurance by which the Cayman Islands might recover the cost of repairing the damage he has done, what with the settlement(s) and obscene costs associated with losing the services of one of our best trial judges and the legal proceedings that would not have happened but for the bad advice.

    We need to look everywhere to find money to float the government.

    • Anonymous says:

      OK, me again (replying to myself).  I see that Cresswell J’s judgment said at page 61 that Polaine had no practicing certificate at the time.  He would therefore not be entitled to practice in the UK.  He was never entitled to practice here.

      Let’s sue his ass off, here in a Cayman court… let’s see if he has insurance.

      • Anonymous says:

        Actually, there are lots of lawyers here that are being admitted without having current certificates elsewhere. All the law seems to require is that someone has been admitted, not that they have a current certificate.

        • Anonymous says:

          Usually an attorney in a regulated jurisdiction (unlike Cayman where attorneys are not regulated at all) has to have liability insurance in place to go get their practicing certificate.  If he was a non-practicing barrister in the UK at the time, I am not sure if he would have professional liability insurance.