04 October, 2008

Cayman Islands

Stuart Jack, a governor with balls. It is not often that you see a British governor of a colony taking firm action to restore integrity in public office. I have written often enough about the FCO’s preferred technique of brushing the dirt under the carpet. But, Stuart Jack is a governor of a different breed. It will be interesting to see if he serves out his full term of appointment in Cayman Islands. I expect that an opportunity will be found soon enough to return him to London. He has had a series of extraordinary challenges with both the judiciary and senior officers in the past year.

Stuart Jack

On 28 March, Jack announced that he had sent Police Commissioner Stuart Kernohan, Deputy Commissioner Rudolph Dixon, and Detective Chief Superintendent John Jones on leave with immediate effect. He announced he was doing this to enable an investigating team from the Metropolitan Police Service led by Detective Chief Superintendent Martin Bridger to proceed with enquiries. This followed earlier investigations into allegations made against Deputy Commissioner Anthony Ennis which resulted in Ennis’ complete exoneration.

Martin Bridger

On 23 July, the independence and reputation of the judiciary took a blow. Chief Justice Anthony Smellie was obliged by rumours circulating in the Cayman Islands to issue an unprecedented press release concerning Judge Priya Levers. Rumours were rife that she had been suspended or was about to be terminated. The Chief Justice assured the public that she was merely away on leave. That was his statement in its entirety. Hardly reassuring when you consider that persons about to be charged or arrested are frequently sent on leave. The only shorter comment that the Chief Justice could have made was, “No comment”. It would have been no less informative and not more reassuring.

Anthony Smellie

On 5 August, Dixon was charged with two counts of misconduct in public office and two counts of doing an act tending and intended to pervert the course of public justice. Kernohan and Jones are still under formal investigation for possible misconduct in public office.

Rudolph Dixon

On 16 September, Governor Jack announced the appointment of a Judicial Tribunal to investigate allegations of misbehaviour in judicial office against Judge Levers. The allegations concern certain “financial irregularities”. The Tribunal will be chaired by Sir Andrew Leggatt QC, a former Justice of Appeal in the UK. Needless to say, the Governor has suspended Judge Levers while this process is taking place.

Priya Levers

Then, on 24 September, Jack announced the arrest of Judge Alexander Henderson on charges of misconduct in public office. He was held and questioned at the police station until his release the following day. It seems he was only arrested because he refused to be interviewed in the investigation into the activities of the suspended police officers. He had given a written statement, but refused to be cross-examined orally. So, they arrested him and questioned him for several hours. We all hope it was nothing more than that. The judge has an excellent reputation both in Canada and in the Cayman Islands.

Alexander Henderson

As a result, the rule of law in our sister British Overseas Territory of the Cayman Islands has taken some vicious body blows this year. But, there is a reassuring side to these developments. If the Foreign and Commonwealth Office will show the same guts in Anguilla as Governor Jack has shown, we may even develop some respect for that Department and its officers. That would be a new and welcome development for Anguilla.

At present, no one in Anguilla can imagine the governor pursuing allegations against any senior police officer here no matter how serious they are. The official position is that you must present “evidence” before any action will be taken. The whole point of an inquiry is that it is designed to find out if there is any evidence. After that, the law takes its course. If you already have the evidence, there is no need to hold an inquiry.

I am quite confident that no judge of the Eastern Caribbean Supreme Court will ever find himself in a similar position. The magistracy is a different matter. We all remember the stories that were circulating about certain magistrates over the past twenty years. Not one of them was ever charged with any offence, far less arrested. They were all allowed to quietly depart from Anguilla and all possible charges were dropped. No names will be mentioned, but all adults living in Anguilla at the time will know who I mean. Where was governor Jack when we needed him?

As usual, all parties mentioned are innocent of any crime until they are convicted by a jury of their peers, the good men and women of the Cayman Islands.


  1. A further update is available at Cayman Compass News.

  2. In the matter of Madam Justice Priya Levers, Cayman Net News reports:

    "While Justice Levers has declined to describe the allegations against her, they appear to turn on multiple claims of inappropriate courtroom remarks, bias against parties involved in hearings and contributions to courthouse gossip."

    In her defense, her lawyer seems to have invented a whole new way to look at judicial propriety. Things that a judge should not say in court are acceptable if she was angry: "I cannot see how they can rely on court transcripts. They give no sense of context or personality. How can a transcript demonstrate anger or the mood or anything beyond the words spoken?"

    If this novel theory of criminal defense is correct, then if I'm arrested for beating my wife, I can claim it was acceptable behaviour because I was angry. Hello?

  3. The Toronto Globe and Mail reports that according to Judge Henderson himself, the allegations against him include:

    * Telling a reporter of the Cayman Net News he was considering whether letters published in the newspaper amounted to contempt of court when he “knew, or had reason to believe, that the content of such letters was not capable of so amounting and that, even if they did, the alleged contempt was not [before] the court and would require investigation by the police at the request of the Attorney-General”;
    * Improperly using the influence of his position as a member of the judiciary;
    * Requesting the reporter to ascertain information that he knew or had reason to believe would amount to a breach of trust or breach of contract by the reporter;
    * Failing to have proper regard to the risk of the reporter being accused of burglary or the breach of the privacy rights of the newspaper's editor-in-chief;
    * Seeking to conduct an investigation, thereby exposing the judiciary of the Cayman Islands to the allegation of partiality and lack of propriety.

  4. Karen Pierce, UK Deputy Permanent Representative and Ambassador to the UN, told the UN Committee on Decolonization last week that in addition to constitutional review work,

    "other support for the [Overseas] Territories focused on capacity-building and sustainable development...[and]...areas such as good governance, political and economic transparency, enhanced security, reduced vulnerability to natural and non-natural disasters and environmental management."

    One can only wonder if she's told Governor Smiley about all this great stuff.

  5. An unelected Governor with executive powers, legislative powers, as well as control over the police and the judiciary is the worst form of unrepentant colonialism.

    What ever kind of governance that is it is not GOOD GOVERNANCE!

    The British sets up a bad system of governance and then pretend to do something about it.

  6. This commentary comes from the Cayman Islands but it could relate to any of the British COLONIES.


    “…. instead of tackling Cayman’s epidemic of corruption and dishonest dealings, the FCO’s team of Scotland Yard detectives has messed up the reputation of three senior Policemen and prospectively two of our four senior judges, on the flimsiest of grounds.

    Why are our Governor and his appointees withholding important information from us?
    We hear occasional promises of “good governance”, but good governance cannot thrive in a shroud of secrecy.

    Over the past thirty years, the FCO has presided over the cancerous growth of mutual resentment between ethnic Caymanians and immigrants, which now amounts to deep mistrust. The Office has done nothing to promote peace between the two communities – not a single thing in thirty years. Indeed, it almost looks as though our colonial masters have actively fostered community conflict.

    Divide and rule
    The mass grants of Status in 2003 infuriated the Caymanians and the civil-rights conservatives: the retrospective rollovers in subsequent years infuriated the immigrants and the civil-rights liberals. The FCO people aren’t stupid; they knew what would happen. Logic tells us they must have planned it.

    Whichever side one takes in the battle for enhanced civil or human rights, it is only sensible to try to figure out what the FCO’s agenda is. My own calculation is that there are two plausible answers, in the context of Britain’s national interests.

    If the FCO officers in London have decided that it is in Britain’s national interests to keep governing Cayman as a colony, then it makes sense for them to keep the local populace off-balance by using the tried and tested “divide and rule” tactic so loved by imperial administrators throughout history.
    Mess with their heads. Float like a butterfly, sting like a bee. Use the Portfolios of the four “British” officials in the Cabinet (the Governor, the Chief Secretary, the Attorney General and the Financial Secretary) to bounce the elected politicians off the wall from time to time.

    When we speak of the poor governance of Cayman, we tend to think of the extravagances of the elected Members of the Legislative Assembly (MLAs). But those are pretty much par for the course in the Caribbean. The really poor governance here is to be found in the portfolios of the civil servants appointed by the governor – the Police Force, the Immigration Department and related committees, the Legal Department and the judges, and the financial regulators. ……………

    If, on the other hand, the FCO officers have decided it is in Britain’s national interests to unload Cayman and its squabbling politicians, then the “Scotland Yard detectives” are probably not real detectives at all, but MI6 types here to wind up the local network and transfer the regional headquarters to somewhere new ……
    This alternative opinion suggests that MI6 never recovered from being outed during the EuroBank trial in 2002, when their plotting was ridiculed in the overseas press as “an Austin Powers farce”.

    Whichever of my two guesses is right, it doesn’t fully explain why Cayman’s reputation was allowed to be so damaged. It seems gratuitous at best, to arrest senior police officers and judges for reasons that are barely credible, and to brush off enquiries with a promise that “all will be revealed in good time”.

    Why would the FCO encourage the ideal of freedom of information, if its local agents are exempted from providing information of crucial importance to us?

    It makes no sense at all.

    This whole Freedom of Information thing may well be an exercise in pure humbug, if it exempts everything in the files of the Governor and his appointees.”

  7. Tempura attorney disbarred

    By CAROL WINKER, carol@cfp.ky
    Thursday 10th December, 2009 Posted: 17:27 CIT (22:27 GMT)

    > Comment on this story

    Martin Polaine advised on judge’s arrest

    Martin Polaine, the UK attorney who advised Operation Tempura officers on the arrest of Justice Alexander Henderson last year, was disbarred after a disciplinary hearing on Wednesday.

    The hearing was conducted by a five–person tribunal of the UK Bar Standards Board. Mr. Polaine admitted all charges against him. The decision is open to appeal.

    The board decision described Mr. Polaine as a barrister who was called to the Bar in 1988. Being disbarred means being expelled from the practice of law.

    Earlier this year Mr. Polaine sent a letter to Justice Henderson apologising unreservedly for the role he played in Operation Tempura, which led to the judge’s arrest and search of his home and office in September 2008 (Caymanian Compass, 30 August).

    After a judicial review, Sir Peter Cresswell determined that the search warrants were not valid. The Crown later agreed the arrest was unlawful. Attorneys for Justice Henderson settled for $1.275 million in damages.

    Justice Henderson subsequently filed a complaint with the UK Bar Standards Board about the advice and conduct of Mr. Polaine over the course of Operation Tempura.

    Tempura, which started as an investigation into possible corruption in the Royal Cayman Islands Police Service, was conducted by an undercover team of officers from UK Metropolitan Police on island since September 2007. Team members, led by Martin Bridger, were sworn in as special constables.

    The board found that Mr. Polaine supplied legal services in the Cayman Islands and allowed himself to be held out as a barrister even though he was not qualified to practise in Cayman, nor did he have expert knowledge of Cayman law.

    The course of his behaviour ran from September 2008 and 21 March, 2009.

    During that time, Mr. Polaine advised Cayman authorities that there was reasonable suspicion that Justice Henderson had committed the offence of misconduct in public office. In fact, there was no such reasonable suspicion.

    He also advised there was reasonable suspicion that material necessary to the investigation into misconduct was in the judge‘s home and chambers. In fact, there was no such reasonable suspicion.

    It was Mr. Polaine who advised that an application for search warrants could be made to a lay Justice of the Peace rather than a judge of the Grand Court. He then failed to advise on the necessary obligations to disclose information to the JP.

    As a result, the Operation Tempura officers who applied for the search warrants failed to put important facts before the JP, Carson Ebanks, and misrepresented other facts, the board summarised.

    It found that Mr. Polaine “engaged in conduct, which was prejudicial to the administration of justice, in that he allowed himself to be introduced as a lawyer” to Mr. Ebanks. By doing so, he was “creating the misleading impression that the application for the search warrants was made on the advice of a lawyer who was qualified to practise in the Cayman Islands.”

    The board said Mr. Polaine later engaged in “conduct likely to diminish public confidence in the legal profession or the administration of justice” by telling the media his advice had been correct and inferring that Justice Cresswell’s judgment was wrong.

    Finally, the board found that Mr. Polaine supplied legal services in Cayman when neither he nor his employer, Amicus Legal Consultants Ltd., was covered by insurance against claims for professional negligence.


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