The trial of the three Jamaica Defence Force (JDF) soldiers charged with the 2010 murder of Keith Clarke, which was halted in 2018 to allow for the constitutional court to determine the legality of immunity certificates given to them by former National Security Minister Peter Bunting, is to begin this year.

This based on indications by Supreme Court Judge Justice Vinette Graham-Allen during a case management hearing at the Supreme Court in downtown Kingston on Tuesday morning. When the matter was called up on Tuesday morning, Justice Graham-Allen said a trial date will be settled on February 21 when another hearing is scheduled. The February 21 date was set after the defence team requested time to take instructions from their clients.

The Appeal Court – which heard the matter on several dates between 2021 and earlier this month – in handing down the ruling on Friday said it affirmed the Order of the Full Court that “the Criminal trial initiated by virtue of the Voluntary Bill of Indictment originally issued in July 2012 by the Director of Public Prosecutions be restored to the trial list and be permitted to continue”.

It however ordered that the trial should be preceded before the arraignment (the accused are informed of the charges against them and asked to enter a plea of guilty or not guilty) by a process in the nature of a voir dire (a separate hearing where the judge determines whether evidence is admissible and can potentially be entered into evidence in the trial) to determine whether the Director of Public Prosecutions can rebut the certificates of good faith issued by the minister.

The Appeal Court further said the preliminary procedure should be conducted by the taking of viva voce (oral) evidence with statements or affidavits to be filed and exchanged in advance.

Clarke, an accountant, was shot and killed at his Kirkland Heights, St Andrew home in May 2010 during what was a joint military and police operation to apprehend former Tivoli Gardens strongman Christopher ‘Dudus’ Coke while the island was under a period of public emergency.

Subsequently, in July 2012, the DPP instituted criminal proceedings against the three soldiers – Lance Corporals Greg Tinglin, Odel Buckley and Private Arnold Henry – for the murder of Clarke. However, at the start of the proceedings, defence attorneys presented certificates (in respect of each soldier) signed by the then Minister of National Security Peter Bunting and contended that these certificates (referred to as ‘the good-faith certificates’ or ‘the certificates’) immunized the soldiers from prosecution. The good-faith certificates were dated 22 February 2016 and were issued in accordance with regulation 45 of the Emergency Powers (No 2) Regulations, 2010 (‘the Regulations’). They stated that the actions of the soldiers which may have caused the death of Clarke 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”.

In April of 2018, the trial judge at the time ruled that the trial should be stayed pending the determination of the Full Court as to the validity of the good-faith certificates.

The Full Court, held that the circumstances in which the minister had signed the good-faith certificates, (those being six years after the incident and four years after the voluntary bill of indictment was proffered), were manifestly unreasonable and unfair and that the good-faith certificates were unconstitutional, null and void, and without effect and, as such, the criminal trial of the soldiers was ordered to continue, without the soldiers being able to rely on the good-faith certificates. The three soldiers however filed a notice of appeal in March of 2020.

But Friday the Appeal Court said it had concluded based on its consideration of all the issues that the Constitutional Court correctly determined that the grant of the good-faith certificates did not infringe on the doctrine of the separation of powers, or the powers of the DPP, and that the Regulations themselves do not breach the Constitution.

“Further, the said certificates give rise to a rebuttable presumption of good faith and could properly have been issued outside of the emergency period, although issued six years after the incident to which they relate,” the Appeal Court stated.

It however said the Constitutional Court erred in determining that the delay in issuing the certificates was manifestly unfair and unreasonable and that, as a result of such delay, the soldiers should not be allowed to rely on them.

“Arising from these determinations, we have concluded that it is not necessary in this case that the certificates be challenged by way of judicial review but rather, in the circumstances, that a preliminary determination be made by a judge of the Supreme Court sitting without a jury (voir dire). This is to determine whether the DPP has provided proof to the contrary of the “good faith” asserted by the Minister’s certificates,” the Appeal Court said.