Lawe v Minister of Labour, Home Affairs and Public Safety

• Jurisdiction: Bermuda
• Judgment Date: 08 March 2005
• Date: 08 March 2005
• Docket Number: Civil Jurisdiction 2004 No. 278
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Kawaley, J

Civil Jurisdiction 2004 No. 278

BETWEEN:

Audley Patrick Lawe, Jr.

Applicant

and

The Minister of Labour, Home Affairs and Public Safety

1st Respondent

The chairman of the Parole Board

2nd Respondent

The Commissioner of Prisons

3rd Respondent

Mr. C Attridge for the Applicant

Mr. M Johnson for the Respondent

The following cases were referred to in the judgment:

Findlay v Secretary of State for the Home DepartmentUNK [1984] 3 All ER 800

T v United KingdomHRC (2000) 30 EHRR 121

R v Port of London Authority, ex p Kynoch Ltd.ELR [1919] 1 KB 176

British Oxygen Co. Ltd. v Minister of TechnologyUNK [1970] 3 All ER 165

Prisons Act 1979

Parole Board Act 2001

Criminal Code Act s. 70P

Administrative law — Statutory discretion of minister — Obligation to determine each application on its merits — Application for parole — Applicant a foreign national convicted of importation of heroin — Whether policies discriminatory — Whether a fetter of discretion — Rationale for public safety

JUDGMENT of Kawaley, J

INTRODUCTORY

On the afternoon of the hearing date of the Applicant's Originating Summons, Crown Counsel felt obliged to concede that the case for relief by way of certiorari was, as a matter of law, an irresistible one. Accordingly on February 22, 2005, with the consent of the Crown, I made an order which most significantly was in the following terms:

‘That the Court grants an Order of Certiorari quashing the policies of the First Respondent which provide : (a) that no person convicted of drug related offences shall be permitted to apply for parole until they have served at least one half of their adjudged term of imprisonment; and (b) that no non-Bermudian (foreign national) shall be permitted to apply for parole until they have served at least at least two-thirds of their adjudged term, on the grounds that they are ultra vires and unlawful.’

I now give my reasons for this decision which was substantially based on a very narrow but elementary principle of administrative law, namely that where Parliament confers a statutory discretion on a Minister or other public body to consider an application, it is not legally permissible to adopt a policy which is so rigid that it binds or fetters the decision maker's discretion in such a way as to eliminate the statutory obligation to determine each application on its merits. Looked at more broadly, the policies were inconsistent with the statutory framework under which they were purportedly made. The policies were thus primarily held to be invalid not on subjective unfairness grounds, but on the objective ground that the policies were inconsistent with the will of Parliament expressed in the relevant legislation.

This narrower principle was amply illustrated in the parole context by the one judicial authority on which Mr. Attridge's legal assault on the relevant policies relied, the House of Lords decision over 20 years ago in Findlay v Secretary of State for the Home DepartmentUNK[1984] 3 All ER 800. So powerful was this authority, that Mr. Johnson quite properly elected to raise the white flag. And while the main point relied upon is indeed a narrow one, its conceptual underpinnings in the legislative context of this case raise wider issues such as the separation of powers under Bermuda's Constitution, and the need to have regard in the judicial review context to the extent to which both executive action and legislative provisions may conflict with the bill of rights contained in Chapter 1 of the Constitution.

I adjourned the application for mandamus to enforce the decision to give the relevant authorities the opportunity to voluntarily give effect to the decision by entertaining the Applicant's application for parole on its merits, in accordance with law.

It was also made clear to Counsel for the Applicant in the course of argument, that the alternative ground on which the policies were attacked, namely a legitimate expectation argument based on unsubstantiated promises allegedly made by the Minister to the father of the Applicant, did not find favour with the Court for reasons which are also explained below.

FACTUAL BACKGROUND

The facts were not significantly in dispute. On April 8, 1999, the Applicant, a foreign national, was arrested at the Bermuda International Airport, and subsequently was charged and pleaded guilty to charges of importation and possession of the controlled drug diamorphine (heroine). On October 22, 1999, he was sentenced to nine (9) years imprisonment with time spent in custody taken into account.

With a view to early release, the Applicant participated in numerous educational and rehabilitative programmes. In late 2001, section 70P of the Criminal Code was enacted, providing that applications for parole could now be made after one-third of a sentence had been served unless the Court had, on passing a sentence of more than two years imprisonment, ordered that at least one half of a sentence or 10 years must first be served. He applied for parole in February 2002 in anticipation of having served one-third of his sentence on April 8, 2002.

On April 22, 2002, the Applicant was interviewed by the Treatment of Offenders Board and praised for his efforts and exemplary behaviour. The Treatment of Offenders Board anticipated his early release. However, he later learned that: (a) the new Parole Board was, after enactment of the Parole Board Act 2001, now competent in these matters and (b) that due to a policy directive from the Minister, the Board was not entertaining applications (i) from foreign nationals until they had served two-thirds of their sentence and (ii) drug offenders until they had served half of their sentence.

In addition to complaining in general terms about the unfairness of these policies, which were not initially consistently applied, the Applicant relies on his father's unchallenged Affidavit, which alleges that in early 2002, the Minister verbally promised him in a meeting and in the course of two telephone conversations that the Applicant would be released after he had served one-half of his sentence. These assertions are not supported by any of the documentary records of communications between the Applicant's father and the First Respondent's Ministry.

His current prison status is that the Applicant has served more than half of his nine-year sentence. He will have served six years or two-thirds of his sentence by April 8, 2005, by which time he would seemingly be eligible for release without parole in any event.

The Applicant deposed without contradiction that it appears that the policies took the form of a directive to the Board from the Minister. There was no direct evidence as to how the policies were officially promulgated. According to a May, 2003 pamphlet published by the Parole Board:

‘Inmates are eligible to apply for parole after serving one-third of their sentence …Exceptions to this rule include: … Inmates who have been convicted of certain drug offences and must serve one half of their sentence … Non-Bermudian inmates (foreign nationals) are not eligible for parole. They are only eligible for release (and deportation) after having served two-thirds of their sentence …’

According to its Mission Statement: ‘THE PAROLE BOARD IS AN INDEPENDENT BODY EMPOWERED TO MAKE DECISIONS GOVERNING THE TIMIMG AND CONDITIONS OF RELEASE OF INMATES BY ASSESSING THE RISK THEY POSE TO THE COMMUNITY AND TO THEMSELVES. THE BOARD ALSO EVALUATES THE LIKELIHOOD THAT A PERIOD OF SUPERVISION UPON RELEASE WILL CONTRIBUTE TO THE SUCCESSFUL REINTEGRATION OF THE OFFENDER INTO THE COMMUNITY.’

THE APPLICANT'S CASE

On August 26, 2004, I granted leave to issue the Originating Summons on the ground that the policies were arguably unlawful on the grounds that neither the Prisons Act 1979 nor the Parole Board Act 2001 contemplated parole being administered on such discriminatory grounds. I indicated that the ground of judicial review based on the alleged oral promise appeared to me to be a weak one. The Applicant's case at this interlocutory stage, not relying on the main point advanced on the full hearing, was arguable but far from clear on a superficial analysis of the scattered statutory provisions. Indeed, the numerous cross-references which are required to grasp the content of the current law illustrate the need for a more publication of consolidated versions of Bermuda legislation incorporating recent amendments.1

However the complaint that the policies implemented by the Minister were unlawful was substantially refined in Mr. Attridge's written submissions presented on the hearing of the Originating Summons, as follows:

‘8. The Criminal Code (Amendment) Act 2001, section 70P provides that all inmates are to be eligible to apply for parole once they have served one third of their adjudged term of imprisonment (subsection 2 of that section renders the operation of that section retroactive);

9. The Parole Board Act 2001, section 7 provides that the Minister may, after consultation with the Board, give such general or specific direction as to the policy to be followed by the Board in the performance of its functions as appear to the Minister to be necessary in the public interest.

10. However, what the Minister has in fact done is to issue an edict that no applications are to be entertained by the Parole Board from persons who have been convicted of drug offences or who are foreign nationals.

11. It is our submission that this policy is ultra vires the powers of the Minister in that the very purpose of section 70P of the Criminal Code (Amendment) Act 2001 and the Parole Board Act 2001 was to take the power to decide who does or does not get parole out of the hands of a single individual and devolve it to a tribunal which is representative of a cross section of society (see exhibit #2). The Minister has in fact usurped the power of the Board to make its...