Sun | Jan 23, 2022

Appeal Court grants stay of Keith Clarke case pending hearing into soldiers' immunity certificates

Published:Wednesday | May 27, 2020 | 12:00 AM
Justice Marva McDonald-Bishop, the single judge who considered the application for a stay of the trial, said the soldiers have “more than a fanciful prospect of success” on some of their claims.

The quest for justice by the family of Keith Clarke will drag on longer following the latest ruling of the Court of Appeal.

Clarke was killed in a military operation 10 years ago in the hunt for then fugitive, Christopher ‘Dudus’ Coke. 

In a May 5 decision, the court granted a request of the accused Jamaica Defence Force (JDF) soldiers to have their trial paused until the hearing of an appeal in relation to the so-called ‘good faith certificates’ which were expected to grant them immunity from prosecution.

Corporal Odel Buckley, Lance Corporal Greg Tinglin, and Private Arnold Henry brought the matter to the Court of Appeal after a panel of Supreme Court judges ruled that the certificates which were signed in 2016 were unconstitutional, manifestly unfair and unreasonable based on the circumstances in which they were issued.

The certificates were signed six years after the incident. 

The lower court has said such certificates in general do not prevent the Director of Public Prosecutions from bringing a criminal case against anyone benefiting from them.

The judges also ordered the case be restored to the trial list.

But Justice Marva McDonald-Bishop, the single judge who considered the application for a stay of the trial, said the soldiers have “more than a fanciful prospect of success” on some of their claims.

She said too that in the interest of justice, the trial should wait.

While noting that further delays “must be a matter of grave concern” for Clarke’s widow, Claudette, the judge said the circumstances of the case and the issues regarding the good faith certificates are not only unusual but unprecedented.  

The soldiers, the judge said, are also facing “grave consequences” since they are “in peril of losing their liberty”.

She said the balance of justice and the balance of convenience are in favour of delaying the trial, noting that precious judicial time could be wasted if the trial goes ahead and the soldiers later win their appeal against the ruling that stripped them of immunity.

In May 2010, Clarke was shot 21 times at his Kirkland Heights home during an operation conducted by the JDF purportedly to capture Coke.

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