On Friday, March 31st, 2023, the Jamaican Court of Appeal rendered a decision in the constitutional challenge brought by Maurice Tomlinson against sections 76, 77 and 79 of Jamaica’s Offences Against the Person Act (“OAPA”), which criminalize same sex intimacy.   

The Court unanimously granted the appeal sought by the Attorney General of Jamaica, thereby overturning an earlier trial court decision from January 2022 that had denied the government’s application to have the case split in two. In essence, the government was arguing that there was a preliminary issue of law that should be determined by the courts before the constitutional challenge could be heard on its merits. This issue concerned whether the application of the ‘savings law clause’ in Jamaica’s Charter of Fundamental Rights and Freedoms precluded the courts from enquiring into the constitutionality of the OAPA. 

The trial judge had denied the application, finding that such a question of law was inextricably connected to questions of fact that would be more appropriately dealt with as a whole. However, the Court of Appeal ruled that the trial judge had erred in finding that this issue required any factual determination and that it could not be dealt with preliminarily. In particular, the Court found that determining this preliminary issue could potentially be dispositive of the claim as a whole, or at least part of the claim. Consequently, the Court concluded that it would be just and appropriate to sever the claim so as to preliminarily determine this legal issue. In turn, the Court of Appeal ordered for the substantive claim to be stayed until this preliminary issue is determined at a trial to be held as soon as possible.