TWO statements by Privy Council law lords in the much-watched Vybz Kartel appeal have convinced seasoned defence attorney Lloyd McFarlane that Jamaica’s judiciary and, by extension, the Caribbean Court of Justice (CCJ), are more than able to settle our own matters.

In last week’s seminal judgment the Privy Council quashed the murder convictions of Adidja “Vybz Kartel” Palmer and his co-accused Shawn “Shawn Storm” Campbell, Kahira Jones, and Andre St John for the 2011 murder of Clive “Lizard” Williams and placed the question of a retrial back in the lap of Jamaica’s Court of Appeal.

But the British court offered no conclusions whatsoever in the appeal asking it to rule on whether the original trial judge should have excluded the telecommunications evidence relied on by the prosecution. The defence had argued that the evidence was obtained in breach of the constitutional rights of the men and was therefore inadmissible.

Instead, the Privy Council said it would defer any answer to the constitutional issue to “another occasion” where it can hear the mind of the Jamaican judiciary.

“On this appeal the board has been presented with elaborate submissions, both orally and in writing, as to the correct approach to constitutional issues surrounding the admissibility of illegally obtained evidence. The board has been invited to lay down new principles and extensive reference has been made to comparative jurisprudence in a number of jurisdictions. It is unfortunate that these submissions were not canvassed before the Jamaican courts in the proceedings,” the law lords said in the ruling handed down last Thursday.

“Rather, before the Court of Appeal these issues were argued and decided on the basis of conventional Privy Council jurisprudence from which we are now invited to depart. As a result, the board does not have the benefit of the views of the Jamaican courts on these important matters. In circumstances where the convictions are to be quashed on other grounds, the board takes the view that consideration of these constitutional issues should be deferred to another occasion on which the board may be assisted by the views of the Jamaican judiciary,” they stated further.

The prosecution’s case had been that the correspondence and communication media, taken as a whole with the evidence of the sole eyewitness, proved the fact of the killing, the reason for the killing, the method of disposal of the deceased’s body, and the identity of at least one of the killers, namely Palmer.

On the matter of whether the trial judge was wrong to invite the jury to reach a verdict late in the day, given the special circumstances of the case, the Privy Council was succinct and stated that it would not address that ground “in any detail”, given its conclusion that the appeal against the convictions must be allowed on the ground of juror misconduct.

It, however, said in respect of the late retirement of the jury, “it does appear that there was an unfortunate departure from best practice on this occasion. However, we note that the Court of Appeal took the view that this departure was justified in the unusual circumstances of this case”.

Said the law lords: “In the view of the Court of Appeal the allegations against Juror X required the earliest deliberation, and this justified the late retirement. The board would usually defer to the view of the Court of Appeal on an issue where its superior understanding of local practice and conditions is relevant. However, in the light of the board’s conclusion on the jury misconduct issue, it is not necessary to express a concluded view on this ground of appeal.”

According to McFarlane, not much more of a vote of confidence is needed.

“What the Privy Council was really saying was that, on matters concerning the constitutional provisions, especially in relation to the Charter of Fundamental Rights and Freedoms — which is relatively new, having being amended in 2011 — they really would be assisted by hearing what the Jamaican courts think of it. So here they were saying, ‘We don’t have anything in front of us from the Jamaican courts on this and we really feel that the Jamaican courts are a better guide for us,’ ” the senior defence attorney argued.

“It really is an acknowledgement that the Jamaican courts, and by extension the Caribbean Court of Justice, are better able to deal with such matters. They are really saying to us, ‘Look, why don’t you deal with your own matters? You are better able to,’ ” he noted further.

“What in the end they did was [that] they said, ‘Okay, because we have already decided the matter on the issue concerning the juror, we really don’t have to issue a judgment on this part and we are really happy we don’t have to.’ It’s one of the things that I have been saying, that we really have wasted many years when our Caribbean Court of Justice has done so very well since the time that they have been set up. They have done excellent judgments; they are far, far more in touch with what our situation is, and the Privy Council is really saying, ‘Yes!’ ” McFarlane emphasised.

“In fact, in relation to the other ground they essentially were saying, ‘Look, ordinarily we would defer to what the Jamaican courts are saying in relation to certain things but we don’t have to deal with that either.’ And I agree with them. They are acknowledging that we have a much better understanding than they do — and they didn’t need to acknowledge that. We are really fooling around in terms of getting on with our own Caribbean Court of Justice which, I repeat, has now set up an excellent record in these matters,” McFarlane told the Jamaica Observer.

In 2022, CCJ President Justice Adrian Saunders said the Government and people of Jamaica must justify why, after investing heavily in the operations and management of the court, the country is yet to make the entity its final appeal tribunal.

Justice Saunders, who was the speaker at a special guest lecture and dinner to mark the 60th anniversary of the Court of Appeal, was at pains to point out that Jamaica paid approximately US$27 million to help capitalise the CCJ Trust Fund that was created to insulate the court and its judges from political interference, and was one of the 10 Caribbean Community (Caricom) member states to sign the agreement establishing the CCJ.

While the CCJ, in its original jurisdiction, is the court of the 15-member Caricom bloc, only four countries have signed on to its final appellate jurisdiction. They are Barbados, Guyana, Belize, and Dominica, which joined in March 2015.

The CCJ president at the time, noting that no other Commonwealth country with the population and land area the size of Jamaica sends their appeals to London, pointed out that a final court should be accessible to all — and not just to those who have means.