Murder trial halted to determine legality of immunity certificates

Observer staff reporter

Thursday, April 12, 2018

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SUPREME Court judge Justice Glen Brown yesterday halted the trial of the three Jamaica Defence Force (JDF) soldiers charged with the 2010 murder of Keith Clarke, and ruled that the issue regarding the legality of immunity certificates given to them by former National Security Minister Peter Bunting should be settled by the Full Court.

“It is not for this court to determine the legality of the certificates issued by the minister of national security,” Justice Brown said.

The High Court judge's ruling comes two days after JDF attorney Paul Beswick surprised the court with the certificates, which were signed by Bunting on February 22, 2016.

Bunting, in signing the certificates, which shield the soldiers from criminal prosecution in relation to Clarke's death, says although the actions of the soldiers may have contributed to or caused the death of the St Andrew chartered accountant, their actions were done in good faith in the exercise of their functions as members of the security forces for public safety, the restoration of order, the preservation of the peace, and in the public interest.

However, before the ruling was delivered, Director of Public Prosecutions (DPP) Paula Llewellyn made a last-minute attempt to convince the judge to carry on with the trial, which should have started on Monday.

Llewellyn, citing a savings clause in the Emergency Powers Act, argued that the regulation that was used by Bunting to sign the immunity certificates expired seven days after the state of emergency had ended, which would have been on June 30, 2010. Hence, the certificates were of no force, as they were not executed during the course of the state of emergency.

Additionally, she said the minister signed the certificates four years after she had indicted the soldiers for murder via her constitutional power, and had put them before the court on the trial list.

“The regulation would not have had any power when juxtaposed against the constitutional power,” the DPP argued.

She then went on to describe Bunting's action as an interference and a breach of the constitution.

However, Beswick in his reply said that the DPP had misinterpreted the clause, as contrary to what she had stated, the clause gives the minister the power to sign the certificate of immunity even after the state of emergency had ended.

“No one questions the jurisdiction and authority of the DPP to institute prosecution, and what is taking place here in this application is not an attempt to do an end run around the DPP's authority; to the contrary, it is the exercise of a different jurisdictional authority created by Parliament. The DPP institutes prosecution when he or she chooses; Parliament has vested in a minister the authority to nullify, immunise specific prosecution in specific cases,” Beswick said.

Further to that, he said the immunity was not granted by the minister but by Section 45:1 of the Emergency Powers Act.

“All that the minister has done is to certify the requirement for the immunity,” Beswick said. “Even without the minister's certificate, it is possible to prove immunity simply by evidence.”

However, he said the question as to how the immunity is arrived at is not for the criminal court, hence the matter should be put to the Full Court and stay the trial.

In the end, Justice Brown agreed with Beswick that the issues surrounding the immunity certificates should be addressed by the Full Court.

He, however, advised both parties that they should apply for judicial review in a timely manner.

In the meantime, he extended the bail of the three soldiers — Corporal Odel Buckley, Lance Corporal Greg Tinglin and Private Arnold Henry — and ordered that they return to court on September 17 when the court is to be updated on what is happening.

Clarke was fatally shot at his East Kirkland Close residence on May 27, 2010 during the manhunt for Christopher 'Dudus' Coke, who was suspected to have been hiding in the area.

Clarke was reportedly shot 21 times.

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