The former legal adviser for the ill-fated Operation Tempura corruption investigation is now seeking to appeal his disbarment in the United Kingdom.
Martin Polaine was disbarred following revelations that he acted as an attorney in the Cayman Islands – advising former chief investigator Martin Bridger’s team on the arrest of Grand Court Justice Alex Henderson – without first having been called to the bar in Cayman.
Mr. Henderson’s arrest was later found to be unlawful by then-visiting Judge Sir Peter Cresswell and Judge Henderson was paid a $1.275 million settlement after he sued the Cayman Islands over it.
Mr. Polaine made a full apology to the court for his actions.
However, he told the Caymanian Compass last week that he now intends to try to get his law licence back in the UK by appealing the decision of the disciplinary tribunal that disbarred him and getting a re-hearing.
“At the original hearing I pleaded guilty to all matters against me,” Mr. Polaine said. “I took that course because I took the view that I was bound by the findings of Sir Peter Cresswell and that it was, therefore, the honourable thing to do. It would have been inappropriate, in my view at the time, to have used the tribunal as some sort of ‘appeal court’ against Sir Peter’s ruling.
“I recognised, even back in 2009, that the Bar Standards Board and the tribunal itself would not have the resources or, indeed, the powers, to conduct an in-depth investigation into what had taken place around Operation Tempura. It was for that reason that I made the detailed and formal complaint to the Foreign and Commonwealth Office/Governor, in the hope that just such an investigation would be initiated,” Mr. Polaine said. “I lost faith in the exercise … and had my hopes of a detailed enquiry dashed. I now intend to put everything in front of the Visitors (the appeal body) and, if I’m successful in getting a fresh hearing, in front of the tribunal.”
In a telephone conversation last week, Mr. Polaine said it was his belief that he would not have to be called to the Cayman Islands bar prior to dispensing legal advice because he was working on a government contract. “If you’re actually contracted by the government … you don’t need to be called to the Cayman bar,” he said.
The Caymanian Compass contacted Attorney General Sam Bulgin for a response to that claim twice last week, but received no reply.
Seeking further clarity on the issue, the Compass contacted former Cayman Islands Senior Crown Counsel John Masters, who worked in Cayman between 2008 and 2012. During the first part of Mr. Master’s tenure, Operation Tempura was still active.
Mr. Masters said he did not have any direct knowledge of Mr. Polaine’s disbarment or the pending appeal against it. However, he said the Constitution that existed at the time Tempura matters were proceeding before the courts – the Cayman Islands 1972 Constitution Order – was clear about who could act as an attorney in Cayman without being called to the bar.
Section 16(2) of the previous Constitution states: “The powers of the attorney general … may be exercised by him in person or by officers subordinate to him acting under and in accordance with his general or special instructions.”
For instance, lawyers that appear as Crown counsel to prosecute criminal court cases would not have to be called to the bar because they appeared on behalf of the attorney general under the 1972 Constitution Order. But Mr. Masters said the attorney general was the only such person to have that authority under the previous governing document.
“It’s a question of whether someone appeared for the attorney general,” he said. “Just having a government contract would not allow someone to act as an attorney unless he was actually representing the attorney general at the time.”
Mr. Polaine’s business partner, Arvinder Sambei, who runs the consultancy firm from which Mr. Polaine was hired in 2008, said that her colleague was “not appearing on behalf of the attorney general as Crown Counsel” at the time he was advising on Operation Tempura matters.
“Martin [Polaine], through Amicus Legal Consultants Ltd [Ms Sambei’s firm name at the time] was engaged as independent legal adviser to Operation Tempura,” she said. “When Operation Tempura commenced the investigation, Martin Bridger met with the attorney general to seek legal advice on various issues re: the investigation. The attorney general took the view that the investigation team should have independent counsel as the attorney general’s chambers would only be involved once the investigation was concluded to decide on sufficiency of evidence, public interest – essentially whether the matter should proceed to prosecution.”Andre Mon Desir was appointed as the independent legal adviser to Operation Tempura in 2007, but was appointed as a judge later on and left the Cayman Islands.
“After Andre was appointed to the bench, John Yates [former assistant commissioner of the UK Metropolitan Police] approached Martin Polaine to ask if he would be willing to act as independent legal adviser – in the same capacity as Andre – as Operation Tempura had not been able to secure an independent legal adviser in the Cayman Islands,” Ms Sambei continued. “This was done with the explicit approval of the attorney general of the Cayman Islands and the Oversight Group.” [This comment refers to the group of bureaucrats appointed to oversee Operation Tempura in Cayman].
“Following our meeting with Martin Bridger in London, [Amicus Legal Consultants Ltd.] agreed to act as independent legal advisers to Operation Tempura, and at the request of Martin Bridger, Martin Polaine was to be the lead lawyer. Martin Bridger was informed of our status (non-practising barristers as from end of March 2008) which was then relayed to the attorney general.”
A copy of Ms Sambei’s statement was sent to Mr. Bulgin. He did not respond to it.