Judge to decide on validity of soldiers' immunity certificates


Judge to decide on validity of soldiers' immunity certificates

Tuesday, April 10, 2018

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HIGH Court Judge Glen Brown is to decide tomorrow whether he will accept as valid immunity certificates issued to the three soldiers charged with the murder of Keith Clarke, or whether he will halt criminal proceedings so the issue of the certificates can be dealt with in the full court.

The certificates, which exempt the soldiers from prosecution, were granted to them on February 22, 2016 by former National Security Minister Peter Bunting.

Clarke, a chartered accountant, was killed by soldiers on May 27, 2010 during the security forces' search for then fugitive Christopher “Dudus” Coke.

He was reportedly shot 20 times at his Kirkland Close, St Andrew home.

Corporal Odel Buckley and privates Arnold Henry and Greg Tingling were later charged with murder in relation to his death, but when the trial that was scheduled to start yesterday came up, attorney Paul Beswick surprised the Home Circuit Court with the immunity certificates. He argued that the certificates prohibit the soldiers from facing criminal prosecution.

“I hereby certify that the actions of JDF (Jamaica Defence Force) Corporal Odel Buckley on May 27, 2010 between the hours of 12 am and 12 pm at...Kirkland Close, Red Hills, St Andrew, which may have contributed to or caused the death of Keith Clarke, were done in good faith in the exercise of his functions as a member of the security forces for public safety, the restoration of order, the preservation of the peace, and in the public interest,” Beswick read from one the immunity certificates.

He argued that the certificates were valid and must be treated as law unless the issue of their validity is successfully challenged.

However, lead prosecutor in the matter Paula Llewellyn, who described the move by the minister to grant immunity to the soldiers as “a most unusual exercise of authority”, questioned the authenticity of the certificates and the provisions in law which had empowered Bunting to use the Emergency Powers Act to grant immunity when he was no longer a minister.

She argued that there was insufficient evidence to support the provenance and authenticity of the certificates as they were tendered without a sworn affidavit from Bunting.

“We have not even seen the original of this document,” Llewellyn said.

The prosecutor also argued that the move by the attorney, asking for the court to accept the documents as valid, was premature, as the court has not heard any evidence to determine whether or not the soldiers had acted in good faith.

“It must be that the court will have to be put in a position to assess good faith because otherwise what will happen, any member of the army or the police force under the state of emergency could kill somebody in cold blood and then when the matter comes up for trial they present a document with no affidavit or anything to indicate exactly what informed the minister's decision to sign this document, especially a minister who was not duly authorised at the time of the incident,” she further stated.

In the meantime, Beswick, in his response, said that the defence does not have to produce anything other than the copy of the certificates.

He, however, conceded that citizens may be killed innocently by members of the security forces during the state of emergency and be granted immunity, but he said that is part of the risk that democratic society has to accept under the rule of the law.

“We may not like it but we have to accept it, the minister is the minister,” he said.

Beswick also pointed out that it is not up to the court to enquire into what had informed Bunting's decision to grant immunity and if it was determined that the soldiers had acted in good faith.

According to him, if Llewellyn is of the view that the minister's decision was irrational, she should bring the matter to the full court.

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