Cashman v Parole Board

• Jurisdiction: Bermuda
• Judgment Date: 09 July 2010
• Date: 09 July 2010
• Docket Number: Civil Jurisdiction 2009 No. 362
• Court: Supreme Court (Bermuda)

In the matter of an application for judicial review

And in the matter of the decision of the Parole Board to refuse to release Martin Cashman on licence

And in the matter of the failure of the Parole Board to reassess whether Martin Cashman is now eligible for release on licence

And in the matter of directions given to the Parole Board by the Minister of Labour, Home Affairs and Housing insofar as they relate to foreign prisoners seeking release on licence

BETWEEN:

MARTIN CASHMAN

Applicant

v

THE PAROLE BOARD AND THE MINISTER OF LABOUR, HOME AFFAIRS AND PUBLIC SAFETY

Respondents

Civil Jurisdiction 2009 No. 362

In The Supreme Court of Bermuda

Abstract:

Application for parole - Non-Bermudian - No reciprocal agreement with prisoner's country for release on parole - Discrimination - Judicial review

The following cases were referred to in the judgment:

Re AB & CoELR [1900] 1 QB 541

Fay v GovernorBDLR [2006] Bda LR 66

Fay v GovernorBDLR [2006] Bda LR 65

Mr E Johnston for the Applicant

Mr M Douglas for the Respondents

JUDGMENT of KAWALEY, J

Introductory

1. The Applicant is a British National who was convicted on February 24, 2004 following a trial before a judge and jury of importation and possession of diamorphine (heroin) with intent to supply on October 5, 2003. On the date of his conviction, he was sentenced to 11 years imprisonment. By Notice of Application dated October 29, 2009, the Applicant applied for leave to seek judicial review of various decisions and sought the following relief:

i. an order of certiorari quashing the Refusal Decision and/or the Policy Decision and/or the Executive Direction;

ii. an order of mandamus compelling the Parole Board to determine that the Applicant is eligible for release on parole and/or compelling the Parole Board to prescribe time limits within which it will review applications;

iii. a declaration that (i) the Parole Board has a discretion to decide whether foreign prisoners may be released on parole notwithstanding the absence of any reciprocal agreement between Bermuda and the prisoner's country of origin, and/or (ii) that the Minister had no power to make the Executive Direction and/or (iii) that in the interests of fairness the Parole Board ought to fix time limits for reviewing applications for parole.

2. The Chief Justice granted leave by Order dated November 3, 2009. By Summons dated December 1, 2009, the Respondent applied to set aside the grant of leave. This application was heard before me on February 5, 2010 when I set aside the grant of

leave as respects the challenge to the Minister's alleged Executive Direction, which the Applicant was not adamant about pursuing in any event. Otherwise, the application to set aside the grant of leave was refused. However, I also directed that the principal issue which appeared to fall for determination was the legality of the Board's view that section 12 of the Prisons Act did not empower it to grant parole to foreign prisoners in their country of origin.

3. What falls for determination was summarised in the Plaintiff's counsel's Skeleton Argument as follows:

"The three decisions still under challenge are these:

3.1. First, the Board's decision to refuse Cashman's release on licencedated on or around August 2007 ('the Refusal Decision');

3.2. Second, the Board's continuing policy to refuse foreign prisoners' release on licenceunless a reciprocal agreement is in place between Bermuda and that foreign prisoner's country of origin which governs the transfer of prisoners for the purpose of imposing and monitoring licensing conditions ('the Policy Decision');. and

3.3. Third, the Board's refusal to reconsider whether Cashman should be released on licence('the Re-Determination Decision')."

4. Mr. Johnston is to be commended for adopting a practice which it is to be hoped other counsel will see fit to emulate; namely, submitting a DVD containing electronic copies1 of not only his Skeleton Argument, but his authorities and all the evidence as well.

The evidence

5. In his First Affidavit sworn on October 28, 2009 in support of the present application, the Applicant deposes that prior to the offence of which he was convicted in Bermuda he was a London taxi driver and had no previous convictions. He lived with a wife and two children and near both his mother and sister. When he began his sentence he was told by Prison staff that he would be able to apply for parole having served 1/3rd of his sentence, just like any Bermudian prisoner. He maintained his innocence, contending that he had been tricked by a friend whom he had subsequently attempted to assist the police to bring to justice. He applied for parole after completing one third of his sentence. At the meeting, he provided the Board with a copy of a letter from the United Kingdom Probation Service offering to supervise the Applicant on a voluntary basis if he was paroled in Bermuda and returned to the United Kingdom. After this application was refused, he sought legal representation; one lawyer withdrew, and his second firm unsuccessfully sought legal aid, refusal coming on July 3, 2009. His sister then had to raise funds for the present application.

6. In paragraph 9 of the Applicant's Affidavit, he deposes as to his belief as to why he was refused parole as follows:

"I understand the reason for this denial was that I was a foreign national, and if given parole, I would be deported back home, where the Parole Board would be unable to monitor whether I complied with the various conditions they impose upon those who are granted release on licence. This is the reason provided to many foreign inmates after 1/3 of their time in Bermuda's prisons are already served. This is also the position taken in the Parole Board Annual Report 2008 [12-27]. The relevant section of the report [26] says this:

As at December, 2008, 27 foreign nationals remain incarcerated in Bermuda; mainly on conviction for drug offences; however, although the Board sees such persons when they reach their Parole Eligibility) Date, as the purpose of parole is supervised licence and the Board cannot guarantee such supervision outside of Bermuda the Board is

unable, within the terms of the Act, to grant parole to foreign nationals"

7. The Applicant crucially relies on the quoted passage in the Board's Report as evidence of the continuing policy of which he complains. Other supporting evidence for his case generally is exhibited to his Affidavit. His sister wrote a letter dated May 6, 2007 confirming that she could provide the Applicant with both employment and accommodation in London upon his release. The Director of the London Headquarters of the National Probation Service wrote a letter to the Applicant's London Solicitors dated May 18, 2007 confirming the Service's willingness to supervise the Applicant if paroled "on a purely voluntary basis". Dame Jennifer Smith as Chairman of the Board sought clarification of the May 18, 2007 letter by letter dated July 3, 2007 and (a) pointed out that the UK was responsible for Bermuda's internal and external security, and (b) asked whether "in your opinion the possibility exists for a Board to Board arrangement or, alternatively, for a prison to prison arrangement." The UK Probation Service's response dated July 23, 2007 merely reiterated that in the absence of statutory powers, any assistance they provided would be on a voluntary basis and unenforceable.

8. It appears from a September 10, 2007 letter from the Board Chair to the Applicant's London solicitors, that after this correspondence with the National Probation Service (which was triggered by a letter from the Applicant's sister), the Board met with the Applicant "and informed him that we would continue to work on his case-he indicated his desire for parole and affirmed that he was not interested in repatriation (which is an option)". According to Board Minutes dated June 18, 2007, the Applicant appeared for his first interview before the Board, the Board noted that his "Parole Eligibility Date was 8th June 2007" and that although his "Earliest Release Date is 5th February 2011, he has rejected repatriation to the UK noting that if he is repatriated to the UK, he will not be eligible for parole until he has served half his sentence." His application was deferred with the board agreeing to contact the UK Probation Authorities through the Minister and the London Headquarters directly.

9. Not only did the Board seek to assist the Applicant, but the Minister (presumably at the Board's prompting) did as well. Permanent Secretary for the Ministry of Labour Home Affairs and Housing Derrick Binns' December 1, 2009 Affidavit exhibits a June 26, 2007 letter from his predecessor, Marva-Jean O'Brien, to the then Governor. This letter, which appears to a have attached a copy of the UK Probation Service's May 18, 2007 letter, stated in material part as follows:

"As Bermuda is an Overseas Territory some arrangement should exist between the UK and Bermuda to monitor parolees who are returned to the UK.

I write to ask if you would look into this matter as we do have UK foreign nationals who are eligible for parole, having served 1/3 of their sentence, but are unable to be paroled because no arrangement exists, with the UK."

10. What happened after that initial enquiry is not addressed in evidence; however, the Binns Affidavit does note that the Minister "is unable to find a response by HE the Governor to our letter" (paragraph 5). The Affidavit of Clark Minors (a Parole Board member as of January 1, 2008) dated March 4, 2010 was sworn on behalf of the Board, and significantly deposed as follows:

"6. That the Board accepts that it does have a discretion to determine whether a foreign prisoner should be released on licenceafter such prisoner becomes eligible for release on licencewithin Bermuda under section 12 of the Prison Act, 1979 (the Act) and...