Immunity certificates in Keith Clarke’s killing are valid, gov’t lawyers argue at appeal hearing

Government lawyers today argued that the indemnity certificates issued by then National Security Minister Peter Bunting to the three soldiers implicated in the murder of businessman Keith Clarke should be held as valid.

Corporal Odel Buckley, Lance Corporal Greg Tinglin, and Private Arnold Henry were presented with the certificates in 2016, four years after they were charged with Clarke’s murder, which were expected to grant them immunity from prosecution. 

Clarke was shot 21 times inside his Kirkland Close home in Red Hills, St Andrew, on May 27, 2010, during a police-military operation aimed at capturing then fugitive drug kingpin Christopher ‘Dudus’ Coke. 

But Clarke's widow had challenged the validity of the certificates on the grounds that they were issued outside of the emergency powers and that the issuance infringed on the principle of the separation of powers enshrined in the Constitution. 

In February 2020, the Constitutional Court ruled that the immunity certificates were invalid, null, and void and that and that the soldiers should stand trial. 

The court also ruled that certificates did not prevent the director of public prosecutions from mounting a criminal case.

Consequently, the soldiers filed an appeal challenging the lower court’s ruling.

When the matter came up in the Court of Appeal today, deputy solicitor general, Althea Jarrett, who is representing the Attorney General, the second respondent in the appeal case, argued that "the paramount fact determining the validity of the certificates was not the expiring of the regulations, but whether the acts of faith were committed during the emergency period,” she said. 

Clarke’s wife is the first respondent.

Jarrett argued that the issuance of the certificates outside of the expiration period did not render them null and void and contended that the issuance by the minister was merely an administrative function. 

She noted that the regulation does not give the Minister the power to grant immunity, but she was quick to explain that the certificates are issued on the assumption of good faith. 

She further argued that the regulations provide an avenue for immunity certificates granted on the grounds of acts of good faith to be challenged and as such does not infringe on the prosecutorial powers of the Director of Public Prosecution or on the judiciary.

“The regulation provides a rebuttable presumption once the certificates of good faith have been issued, and once those certificates have been issued, the DPP, in the exercise of the powers that she has, and the provision gives her in regulations 45 to rebut that presumption, and she has sought to exercise those not once but twice," the deputy-solicitor general said. 

“The minister’s certificate cannot terminate and prevent the conduct of criminal proceedings if the DPP determines that there is evidence.” 

At the same time, Jarrett argued that it would have been unfair to the soldiers for them to have been denied the opportunity to have the good faith certificates issued in the circumstances where the actions that they relate to were done during the State of Emergency and during the life of the regulations.

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