Attorney-General of Bermuda v Leighton Griffiths
| Jurisdiction | Bermuda |
| Judge | Hargun, JA,Baker, P,Bell, JA |
| Judgment Date | 01 April 2016 |
| Neutral Citation | [2016] CA Bda 8 Civ |
| Docket Number | CIVIL APPEAL No 16 of 2015 |
| Court | Court of Appeal (Bermuda) |
| Date | 01 April 2016 |
[2016] CA (Bda) 8 Civ
The Court of Appeal for Bermuda
Baker, President
Bell, JA
Hargun, JA (Acting)
CIVIL APPEAL No 16 of 2015
This is the Judgment of the Court, to which all its members have contributed, on an appeal by the Appellants against the decision of Kawaley CJ, contained in a Judgment dated 13 August 2013, declaring that the Respondent's fundamental rights had been infringed in that the provisions of the Prisons Act 1979 relating to parole, as applied to him as a Jamaican national, discriminated against him on the grounds of his place of origin in contravention of his rights under section 12 of the Bermuda Constitution.
The Respondent was born in Jamaica on 22 March 1976 and is a Jamaican citizen. On 7 April 2001 he married Rodericka Peterson, a person possessing Bermudian status within the meaning of the Bermuda Immigration and Protection Act 1956 (‘BIPA 1956’). As a consequence of his marriage to Ms. Peterson, the Respondent obtained confirmation from the Department of Immigration on 3 May 2001 that the Respondent was a ‘special status husband’ within the meaning of section 27A of BIPA 1956. As a consequence of being a ‘special status husband’ the Respondent was allowed to land and to remain or reside in Bermuda as if he were deemed to possess Bermudian status under BIPA 1956. Section 27A provides:-
‘Special provisions relating to landing etc of husbands of Bermudians
27A (1) Notwithstanding anything in section 25 and without prejudice to anything in section 60, but subject to subsection (4), the husband of a wife who possesses Bermudian status (a ‘special status husband’) shall be allowed to land and to remain or reside in Bermuda as if he were deemed to possess Bermudian status, if the conditions specified in subsection (2) are fulfilled in relation to him.
(2) The conditions to be fulfilled in relation to a special status husband are as follows—
(a) his wife must be ordinarily resident, or be domiciled, in Bermuda;
(b) he must not contravene any provision of Part V;
(c) he must not have a relevant conviction recorded against him;
(d) the Minister must be satisfied that the special status husband is a person of good character and previous good conduct;
(e) the Minister must be satisfied that the special status husband and his wife are not estranged.
(3) In relation to a special status husband ‘relevant conviction’ in subsection (2)(c) means a conviction, whether in Bermuda or elsewhere, of an offence which, in the Minister's opinion, shows moral turpitude on the special status husband's part.
(4) If a condition specified in subsection (2) is not fulfilled in relation to a special status husband, his landing or remaining or residing in Bermuda shall be deemed to be, or, as the case may require, to become, unlawful except with the specific permission of the Minister.’
On 12 July 2007, the Respondent was convicted of offences under the Misuse of Drugs Act 1972 and sentenced to a term of 14 years imprisonment. This sentence was reduced to one of 12 years imprisonment by the Court of Appeal on 12 March 2008.
The sentence imposed upon the Respondent was for a fixed term and subject to remission of one third for good conduct under section 10(1) of the Prisons Act 1979. Section 10(1) confers a right to be considered for parole and the Parole Board decides whether an applicant is suitable to be released on licence, on parole.
On 24 June 2009, the Respondent's wife wrote to the then Minister of Labour Affairs and Housing requesting that he be allowed to go on work release and allowed to reside in the matrimonial home. By letter dated 29 July 2009, the Minister advised that as the Respondent was convicted of ‘amost serious offence and as such there is little chance that as a foreign national, he will qualify for work release. With regard to parole — he would be eligible for such but, again as a foreign national, he would be ineligible to be granted parole. It is also unlikely that he will be allowed to remain in Bermuda when he is ultimately released’.
The Respondent made an application for parole on 29 January 2011 and was interviewed by the Parole Board on 16 May 2011 where his application was reviewed. At that time his application was deferred pending the confirmation of his immigration status. On 5 August 2011, the Parole Board was advised by the Chief Immigration Officer that the Respondent was likely to be deported from Bermuda upon release in accordance with section 27A of BIPA 1956. Upon receiving this advice, the Parole Board advised the Respondent on 10 August 2011 that ‘thelaw does not provide for the parole of foreign inmates without permission to reside being granted by the Minister responsible for Immigration’. The end result was that as the Respondent did not have the necessary immigration approvals to work and reside in Bermuda, he was not granted parole at that time.
In relation to foreign prisoners section 14A of the Prisons Act 1979 does provide that where the Minister is satisfied that reciprocal provisions have been made by the law of any of the countries listed in the schedule for the release of prisoners on licence or parole, the Minister may transfer from a prison in Bermuda, a prisoner who is a citizen or permanent resident of any of the listed countries. Whilst Jamaica is a listed country for the purposes of section 14A, the Jamaican authorities have advised the Bermudian authorities that they will not accept inmates released on licence or parole from Bermuda.
In these proceedings the Respondent alleged that his constitutional rights had been infringed in that the denial of parole contravened his rights under section 12(2) of the Constitution. This section provides:-
‘Protection from discrimination on the grounds of race, etc
12…
(2) Subject to the provisions of subsections (6), ( 8) and (9) of this section, no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.
(3) In this section, the expression ‘discriminatory’ means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, place of origin, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.’
The Chief Justice considered that the evidence clearly established that the applicant was qualified for parole in all respects save for the fact that, as a convicted foreign national, he had no unrestricted right to work in Bermuda. The Chief Justice also considered that it was clear that the supervisory aspects of parole, as found in the Prisons Act 1979, contemplated release on licence within Bermuda only and that it was arguable at least that by necessary implication, the regime established by section 12 of the Prisons Act 1979 is only, in practical terms, accessible by those with an unrestricted right to reside in Bermuda. Section 12, in part, provides as follows:
‘Release on licence; fixed term
12 (1) Without prejudice to sections 13 and 14, but subject to subsection (2) the Parole Board, having given due consideration to any recommendation made by the Commissioner of Prisons, may, in respect of any prisoner direct that instead of the prisoner being granted remission of his adjudged term of imprisonment under section 10, such prisoner shall, at any time on or after having completed one-third of his adjudged term of imprisonment, be released on licence under this section, but the provisions of this section are subject to section 70P of the Criminal Code.
…
(4) A person released on licence under this section shall until the expiration of his adjudged term of imprisonment be under the supervision of a probation officer or of such society or person as may be specified in the licence and shall comply with such other requirements as may be so specified; except that the Parole Board may at any time modify or cancel any such requirements.
(5) If before the expiration of his adjudged term of imprisonment the Parole Board is satisfied that a person released has failed to comply with any requirement for the time being specified in the licence, the Parole Board may by order recall him to a prison; and thereupon he shall be liable to be detained in a prison until the expiration of his adjudged term of imprisonment and, if at large, shall be deemed to be unlawfully at large.
(5A) Where the Parole Board has recalled a prisoner to a prison for failure to comply with any requirements specified in the licence, the prisoner shall be entitled to appear and be heard in person before the Parole Board, before a final decision is made on whether he will be recalled to prison.’
The Chief Justice considered that the Bermuda legislative and administrative scheme for parole in relation to foreign nationals who have no right to reside in Bermuda and no means of being paroled to their country of origin was less than satisfactory for two main reasons:-
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(i) such prisoners have no prospect of being released until they have served two thirds of their sentence, while those for whom parole is available may be released after having served only one third of their sentences:
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(ii) the only possibility of such foreign nationals obtaining earlier release depends on whether or not the Bermudian Executive decides to propose to the Legislature some form of early release...
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