THE Appeal Court panel which is to next month rule on the acquittal or retrial of entertainer Vybz Kartel and his three co-accused still has a major concern.

Following a response from the Crown on the likely sentences to be given in a new trial, the panel on Tuesday reiterated concern that for at least two of the men there is danger that they could be prejudiced given the length of time already spent behind bars.

The issue was first raised by Appeal Court judge Justice David Fraser last Thursday during submissions by Acting Director of Public Prosecutions (DPP) Claudette Thompson on arguments by the defence that the time lapse since the trial and the subsequent appeals is a sufficient factor to militate against the making of any order for a new trial.

“Looking at the length of time the various men were sentenced to in respect of the parole period, and looking at the length of time they have already been in custody, how does that factor in the question of delay if there is retrial, say at the earliest time? They probably would have been in custody for 15 years by the time the retrial starts,” Justice Fraser pointed out.

“The minimum sentence, if convicted, would be 15 years, so someone who has 25 years, for example, and has gone 15, how does that factor into what the court has to decide and balance the competing interests?” he asked then.

Adidja “Vybz Kartel” Palmer and his co-accused Shawn “Shawn Storm” Campbell, Kahira Jones, and Andre St John are accused of killing Clive “Lizard’’ Williams on August 16, 2011 after he failed to return two unlicensed firearms Palmer supposedly gave him to secure. Williams has not been seen since and his body has never been found.

The prosecution’s case was 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 body, and the identity of at least one of the killers, namely Palmer.

In April 2014 Kartel was sentenced to life in prison with the eligibility of parole after serving 35 years. His co-accused — Campbell, Jones, and St John — were also handed life sentences. Campbell and Jones will be eligible for parole after serving 25 years while St John would be eligible for parole after serving 15 years. In April 2020, following an appeal, the men’s parole times were reduced by two and a half years each.

On Tuesday Thompson, in seeking to satisfy the court, said: “There is the determinate sentence with a pre-parole of not less than 10 years. When one considers this offence and the principles established [in case law] we would urge on you that it is unlikely that these appellants will be offered that minimum mandatory of 15 years. Additionally, we submit that the court would have to take into consideration, if there were to be a retrial and conviction, the period already spent in custody — and so it would be a determinate sentence that would be considered.”

A determinate sentence has a definite length and cannot be reviewed or changed by a parole board or any other agency.

Appeal Court judge Justice Marva McDonald-Bishop, who heads the panel which also includes Justice Paulette Williams and Justice Fraser was, however, quick to note in response to Thompson, “You cannot retry someone and give them a higher sentence than they had received before so let us say all of them got life but the pre-parole minimum term varied so you have to separate them now, because if we send them back and they are to get a pre-parole period higher, that would prejudice them.”

When the acting DPP replied that, based on the circumstances of the case and the allegations, the prosecution’s “only answer to the panel is that it is unlikely that they would be given the minimum mandatory”, Justice McDonald-Bishop said while Palmer could be given the minimum and “work out not prejudiced…there are two that would stand to be prejudiced because of the length of time served in custody”.

When Thompson replied, “the reality is, we do not have an answer beyond the answer I just gave you”, McDonald Bishop said, “we have to look at it because credit for time served is a constitutional remedy for deprivation of liberty, so that is something we have to look at in the context of two of them. They would have already practically served their sentence and they can’t get any higher sentence”.

Defence attorney John Clarke’s attempt to take the issue further by suggesting that a Bill now being contemplated by Parliament to make the mandatory minimum parole period for murder 45 years could make matters worse for the men was, however, shot down by McDonald-Bishop.

“Isn’t there a principle from when we were back in law school that you cannot apply a law to a person that was not in force at the time he committed the offence? Unless the statute expressly states that it is retroactive, but usually… you can’t. The court would have to use the law that was in force at the time the offence was committed,” she declared.

When Clarke persisted she said, “we raised it with Miss Thompson, and she said the Crown can say no more. Don’t you see that as a gift? Learn to leave things alone”.

Palmer and his co-accused were in September of 2020 granted conditional leave to challenge their murder convictions before the Judicial Committee of the United Kingdom Privy Council. In March this year the apex court quashed the murder convictions of the four and remitted the question of whether there should be a retrial to the local Appeal Court.

Thompson on Tuesday said the prosecution would be ready with its case by September but was mindful that the court might be unable to do so before January next year.

In the meantime, she said the Crown was convinced that, “The scales weigh heavily in favor of a retrial being ordered given: the seriousness of the offence, the nature of the offence, the prevalence of the offence in our society. Importantly, the strength of the Crown’s case, the fact that the witnesses available and the public interest requires that matters be determined on their merit rather than them being dismissed based on a technical blunder.”

Said the acting DPP: “When you come to consider whether an order should be made for a retrial, the overarching considerations is whether the appellants can be afforded a fair trial given all the factors we have addressed, and we are saying there are sufficient safeguards in place to ensure that the appellants are afforded a fair trial.”

Also on Tuesday, Justice McDonald-Bishop said the anticipated decision on whether or not to retry the men will come no later than July, when the court term is scheduled to end.

Noting that the question of a retrial is never an easy matter, especially when a serious offence has been committed and time has passed, she said, “You have given us a lot to think about,” adding that the court is mindful of all issues, especially Kartel’s health concerns.