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Jamaican prisoner in landmark court victory

A Jamaican prisoner who claimed his constitutional rights were infringed because he was not allowed to apply for parole after serving a third of his sentence has won a landmark victory in the Supreme Court.

Leighton Griffiths was convicted in 2007 of importing 480g of cocaine that was hidden inside an air compressor. He was initially sentenced to 14 years in prison that was later reduced to 12 years by the Court of Appeal.

Earlier this year Griffiths, who is married to a Bermudian, launched a legal action because as a foreign national he was denied the opportunity to be released on licence after serving a third of his sentence even though he was otherwise qualified for such early release.

He claimed that the provisions of the Prison Act 1979, which set down the rules surrounding prisoner's access to parole, breached section 12 — that prevents discrimination on the grounds of place of origin — of the Bermuda Constitution.

In a written judgment released at the end of last week Chief Justice Ian Kawaley ruled in favour of Griffiths saying his constitutional rights had been infringed.

Chief Justice Kawaley said: “The provisions of the Prisons Act 1979 relating to parole as applied to the applicant as a Jamaican national who presently has no opportunity to apply for any form of early release discriminate against him on the grounds of his place of origin in contravention of his rights under section 12 of the Bermuda Constitution.”

Bermudians and people with an unrestricted right to reside and work in Bermuda are able to apply for release on licence in Bermuda after serving a third of their sentence.

Nationals originating from some countries — including the United Kingdom — are also able to obtain an early release on licence because their governments have agreed to supervise them on their return to their countries of origin.

However, Jamaica has not agreed to accept prisoners released on licence. As a result Griffiths was required to remain in prison for twice as long as those prisoners who were able to obtain parole. In his 27-page judgment Mr Kawaley said: “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 seems less than satisfactory for two main reasons.

“Firstly, 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 — albeit subject to potential recall — after having served only a third of their sentences;

“Secondly, 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 scheme designed to give foreign nationals who are ineligible for parole — in Bermuda or in their country of origin — parity of treatment.”

Mr Kawaley described the present parole regime that applies to nationals who cannot access any form of release before they have served their full sentence as “not a coherent or rational one”.

He said it was “discrimination by default or by omission”.

The Chief Justice added: “The significance of the failure of the Executive to take meaningful steps to remove the causes of differential treatment in terms of its impact on the applicant cannot be ignored.

“It is a notorious fact that prisoners place considerable importance on clarity surrounding their release dates.

“The sanctity of the duration of a prisoner's sentence being determined by reference to the sentence imposed by the court is implicitly based in part on this consideration. Because of uncertainties surrounding the applicant's special husband status and his eligibility for parole combined with the delay in making a decision on the deportation process, his ability to understand the effect of his sentence on the likely duration of his detention was undermined ...”

Chief Justice Ian Kawaley

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Published August 17, 2015 at 9:00 am (Updated August 17, 2015 at 2:10 am)

Jamaican prisoner in landmark court victory

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