Appeal Court strikes down ruling that immunity certificates in Keith Clarke killing are invalid

A ruling by Jamaica's Constitutional Court that the certificates of immunity issued to the three soldiers accused of killing businessman Keith Clarke were invalid has been struck down by the country's second-highest court.

At the same time, the Court of Appeal has affirmed an order by the Constitutional Court that the trial of the three soldiers, Corporal Odel Buckley, Lance Corporal Greg Tinglin and Private Arnold Henry, should go ahead.

However, before the trial commences, a voir dire or a trial within the trial must be conducted by a judge alone to determine whether the director of public prosecutions “can rebut the certificates of good faith issued by the minister”, the panel of three appeal court judges ordered.

The 56-page judgment was handed down today.

The appeal court judges stated that the full court erred in determining that the delay in issuing the certificates was manifestly unfair and unreasonable, and that as a result of such delay, the soldiers should not be allowed to rely on them.

"Arising from these determinations, we have concluded that it is not necessary in this case that the certificates be challenged by way of judicial review but rather, in the circumstances, that a preliminary determination be made by a judge of the Supreme Court sitting without a jury," they explained.

Clarke was shot 21 times inside his Kirkland Close home in St Andrew, on March 27, 2010, during a police-military operation to apprehend then fugitive drug lord Christopher 'Dudus' Coke.

But as jury selection for the murder trial was about to commence in 2018 attorneys for the Jamaica Defence Force surprised prosecutors with certificates of immunity for each of the accused soldiers.

The certificates were signed by former minister of national security Peter Bunting in February 2016, nearly six years after Clarke's death and four years after the soldiers were charged with murder.

The Constitutional Court, in its majority decision handed down in February 2020, said the certificates were manifestly unfair and unreasonable.

However, the Court of Appeal said the soldiers' right to a fair hearing would include the right to all available defences to the charges against them.

The good-faith certificates provide the soldiers with a rebuttable statutory immunity to actions carried out by them in the exercise or purported exercise of their functions during the state of emergency that was imposed at the time of Clarke's death.

“In that regard, the [Emergency Powers] Act and the Regulations were not found to have been unconstitutional and the certificates themselves were found to be in keeping with the Constitution by the Full Court, save for the issue of delay,” the judgment said.

“In those circumstances, to simply cite unfairness to the prosecution could not be a sufficient basis on which to prevent the soldiers from relying on the certificates,” it continued.

Further, the Appeal Court said the fact that the good-faith certificates were issued before any trial had commenced should also have been given some weight by the two judges who found them invalid.

“The prosecution would have essentially been in the same position if the certificates had been issued in 2012, 2013 or any year before 2018, as no trial had commenced prior to the certificates being presented.”

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