A Jamaican prisoner who was denied parole has lost an appeal after he claimed the policies were discriminatory.

Leighton Griffiths, a Jamaican national married to a Bermudian, was convicted of possessing 480.5g of cocaine with intent to supply. He was arrested on July 1, 2005 when he went to the LF Wade International Airport to collect a Delta Home Air Compressor stuffed with drugs.

Griffiths denied the offence, saying that someone had sent him to collect the package, but he was convicted following a Supreme Court trial and sentenced to serve 12 years in prison.

While most inmates become eligible for parole after serving one third of their sentence with good conduct, Griffiths has been deemed ineligible for parole as he would likely be deported upon his release.

The law does not provide for the parole of foreign inmates without permission to reside being granted by the minister responsible for immigration — something unlikely to occur because of his conviction.

While the legislation does allow prisoners of certain nationalities to be repatriated and released on parole, Jamaica and Bermuda do not have such a repatriation agreement.

As a result, Griffiths would be required to serve two thirds of his sentence before being eligible for release. Griffiths subsequently launched an appeal against the decision, arguing that the law discriminates on the basis of national origin.

While Chief Justice Ian Kawaley found in favour of Griffiths in a Supreme Court hearing, the Attorney-General, the parole board, the Minister of National Security and the Minister of Home Affairs appealed the judgment to the Court of Appeal. In a judgment, the Appeal Panel disagreed with Dr Justice Kawaley, finding that Griffiths had not been denied parole on the grounds of his national origin, but instead because he committed a serious offence which caused the Minister of Home Affairs to recommend that he be deported.

“The relevant distinction so far as parole is concerned is not between inmates whose place of origin is Bermuda and inmates whose place of origin is outside Bermuda, but between those who are liable to deportation and those who are not. The latter category includes inmates whose place of origin is outside Bermuda who are not subject to deportation orders, either because they belong to Bermuda or the offence is not sufficiently serious to warrant a deportation order.

“Secondly, even in the context of indirect discrimination claims, it is necessary for the Court to understand the reason why the protected group is disadvantaged and in particular whether the disadvantage is causally connected with the prohibited ground.”

The panel concluded: “We recognise that the difficulty faced by foreign prisoners is bound to lead to a sense of unfairness. They may be good candidates for parole but are unlikely to be considered for parole unless they can demonstrate that they can lawfully reside and work in Bermuda. It is also inherently unsatisfactory that the Bermudian taxpayer should have to pay the additional cost of a longer period of custody for someone in the respondent’s position. The remedy surely lies in effective arrangements with Jamaica for the repatriation of prisoners.”