It's a victory for administration of justice, public interest

It's a victory for administration of justice, public interest

DPP states position on ruling of Constitutional Court regarding Keith Clarke case

Senior staff reporter

Wednesday, February 19, 2020

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DIRECTOR of Public Prosecutions (DPP) Paula Llewellyn has classified yesterday's ruling by the Constitutional Court that Jamaica Defence Force (JDF) lance corporals Greg Tinglin and Odel Buckley and private Arnold Henry be tried for the May 2010 killing of Keith Clarke at his Kirkland Heights, St Andrew, home as “a victory for the administration of justice and the public interest”.

Clarke was shot dead during the hunt for then Tivoli Gardens don Christopher “Dudus” Coke.

Llewellyn said her office, which was represented by Acting Deputy Director of Public Prosecutions Adley Duncan and prosecutor Latoya Bernard, had “advanced a particular view that centred on the recognition that the power of the DPP to initiate prosecutions could not be fettered, and that the matter really ought to have been returned to the trial court or should have stayed there in order for the issue to be properly ventilated”.

“The ruling of the Constitutional Court has accorded with those arguments,” the DPP said yesterday in a Jamaica Observer interview.

“All parties concerned, including the Office of the DPP, must do everything in its power to ensure that the accused have a fair trial that all their constitutional rights are protected, but the pendulum of justice swings in both directions. The public's interest also embraces the right of the victim and their families to have the matter properly ventilated. Both the accused and also the victim deserve due process, and I believe that is what the judgement really underscores and, of course, that at the end of the day nobody is above the law,” she said.

Supreme Court Judge Justice Leighton Pusey, in handing down the ruling on behalf of a panel of three judges yesterday, declared that the “criminal proceeding should be restored to the trial list”.

The matter had screeched to a halt in April 2018 after the court was provided “with good faith certificates purporting to grant immunity from prosecution to each of the defendants”. Each certificate was, on its face, signed by then Minister of National Security Peter Bunting on February 22, 2016, pursuant to regulation 45 (3) of the Emergency Powers Regulations, 2010. The regulations were, in turn, made under section 3 of the Emergency Powers Act.

Each good faith certificate stated that the actions of the JDF personnel on May 27, 2010, between the hours of 12:00 am and 12:00 pm, at 18 Kirkland Close, Red Hills, St Andrew, which may have contributed to or cause the death of Keith Clarke, were done in good faith in the exercise of functions as a members of the security forces for public safety, the restoration of order, the preservation of the peace, and in the public interest.

According to the certificates, the said actions were undertaken by the named member of the security forces during the existence of the emergency period declared by the governor general on May 23, 2010.

When the issue of the validity of the good faith certificates was raised in 2018 the court made an order staying the criminal proceedings for three months to enable the parties to apply to the Full Court for a determination of the question of the validity of the good faith certificates.

Yesterday, Justice Pusey, in the 55-page judgement, expressed discomfort with those very certificates.

“It is generally accepted that, in determining the appropriate interpretation to be applied to any piece of legislation, the courts must avoid an interpretation that would lead to an absurd result. The courts must presume that Parliament intended to act reasonably and that it did not intend a statute to have consequences that are objectionable; or undesirable; or absurd; or unworkable; or impracticable; or merely inconvenient; or anomalous; or illogical; or futile; or pointless.

“I find that, in the practical reality of the circumstances that existed on the Island in May 2010, in what could be described as a period of extreme crisis, it would be absurd for Parliament to have intended that the certificates to be issued by the minister, pursuant to the regulations, were to have been issued during the period of public emergency itself. To apply such a narrow interpretation to the provisions of the Act and of the regulations would, to my mind, result in absurdity and would render the Act and the regulations unworkable, impracticable, futile, and pointless,” he said.

Justice Pusey added: “I am, however, troubled by the timing of the issuing of the good faith certificates. The good faith certificates were issued some six years later, and four years after the preferring of the Voluntary Bill of Indictment by the DPP. I find that, in those circumstances, the good faith certificates were issued at a time that was unreasonably late.”

“I note that the investigative process had already begun and had been completed. A Voluntary Bill of Indictment had been preferred against the first, second and third defendants and the trial in the criminal proceeding was about to begin. It is at that time that, for the first time, the fact of these good faith certificates is raised,” the judge went on to note.

Said Justice Pusey: “I find that the delay in the issuing of the good faith certificates is manifestly unreasonable and unfair. Furthermore, the effect of the good faith certificates would be to reverse the burden of proof at the trial of the criminal proceeding, which, at this time and in the circumstances of this case, would not be fair. It is for that reason that I find that the good faith certificates are unconstitutional, null, and void and of no effect.”

He said the court was of the opinion that “the minister's power to issue good faith certificates under the Emergency Powers Regulations do not infringe and are not in conflict with the principle of the separation of powers enshrined in the constitution” and that “the Emergency Powers Regulations do not infringe on the prosecutorial powers of the director of public prosecutions under the constitution”.

“A majority of the court concludes that: In the circumstances of this case, the issuing of the good faith certificates was manifestly unfair and unreasonable, and therefore the good faith certificates are null, void, and invalid; the defendants may not rely upon the good faith certificates at the trial of this matter,” Justice Pusey said further.

The court, as a result, ordered that the criminal trial initiated by virtue of the Voluntary Bill of Indictment originally issued in July 2012 by the director of public prosecutions should be restored to the trial list and be permitted to continue and that the good faith certificates or any certificate issued on 22 February 2016 by the minister of national security outside of the emergency period were issued in circumstances that were manifestly unreasonable and unfair and are, therefore, null and void and without effect.

Bunting, in response to the judgement yesterday, said: “In signing the good faith certificates I relied on the legal advice received and therefore could not have responsibly taken an administrative decision to deny the soldiers access to the certificates.

“The split decision by the court indicates that these are not clear-cut legal matters. I hope that the ultimate resolution of the case will provide clear guidance for the future,” he said.

Bunting also referenced the court's finding that “by issuing the certificates the minister made no determination in relation to the culpability of the defendants”.

He also pointed out that the “court was divided on the issue of whether the delay in the issuing of the certificates was unfair and therefore null and void”.

He added: “The majority indicated that the certificates were null and void due to the length of time that had passed without giving any indication as to what would have been a reasonable time.”

Defence and prosecution lawyers will now take the matter back to the Plea and Case Management Hearing Court, where they will select a convenient date for the case to be put back on the trial list.

In the case which commanded national attention it is alleged that in the wee hours of May 27, 2010, under the then state of public emergency brought on by the hunt the then West Kingston strongman Christopher Coke, a joint police military team entered premises occupied by accountant Keith Clarke and his family in Kirkland Heights, St Andrew. Present at the premises at the material time were the deceased, his wife Claudette Clarke, and Brittani Clarke, his daughter.

In circumstances which have yet to be judicially determined, Keith Clarke was shot and killed by members of the joint police-military team who were present at the premises. The tragic event has given rise to three sets of proceedings in the Supreme Court, one criminal and two civil.

By way of a Voluntary Bill of Indictment, issued in July 2012, the first, second and third defendants, Tinglin, Buckley and Henry, respectively, who were at the time members of the JDF and of the joint police-military team, are charged with the murder of the deceased.

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