A British prisoner took the Bermuda Government to court on Friday, complaining he is being discriminated against due to his nationality because foreign prisoners are denied parole.

Bermudian prisoners have the right to be considered for release after a third of their sentence. But, despite Bermuda being a British Overseas Territory, there is no arrangement in place allowing British prisoners to be paroled back to their home country.

For that reason, Martin Cashman, 56, who was convicted of importing heroin in February 2004 and jailed for 11 years, will not be eligible for release until February 2011, when he will have served two thirds of his sentence.

If he were Bermudian, he would have been eligible for parole in June 2007.

His lawyer, Eugene Johnston, argued during a Supreme Court judicial review hearing yesterday that Cashman is being discriminated against due to his national origin. He described the situation he finds himself in as being the result of "xenophobic-like" behaviour from Government.

In written submissions being considered by the court, he further argued: "This approach is shamefully discriminatory, and cuts across the fundamental rights of foreign inmates".

Mr. Johnston asked Puisne Judge Ian Kawaley to quash a number of decisions made by the Parole Board which determined Cashman could not be released, arguing they were flawed on legal grounds.

Mr. Johnston said if the judge overturns the decisions, Cashman's case can be reconsidered, and the authorities can continue to seek a way for him to be granted release on license to his home country.

There are around 30 foreign prisoners in Bermuda's correctional facilities at present. The only country that has a reciprocal agreement allowing prisoners to be paroled back home is Jamaica. Mr. Johnston told the court that the case is therefore relevant to others, besides Cashman.

"Neither constitution nor convention requires a state to provide prisoners with the opportunity of parole. But if the state creates a parole regime, it must operate it in a non-discriminatory way," he argued.

Cashman's sister, Karon Goldman, has previously spoken to this newspaper of her brother's plight, questioning why there is not a reciprocal agreement between the UK and Bermuda to parole prisoners back to their countries on a voluntary basis.

"Bermudians are now classed as British citizens, so why is a British citizen in Bermuda discriminated against and treated as a foreigner? This is not only wrong but it almost seems racist," she said in 2008.

"Do the taxpayers of Bermuda realise they are keeping prisoners in prison because the Government refuses them parole? If my brother was allowed the same conditions and was deported after a third of his sentence, this would save the Government thousands of dollars."

The Bermuda parole board has declined to release Cashman back to the UK, despite the fact that the National Probation Service in his home city of London agreed to supervise him on a voluntary basis if he was released.

The board said it was unable to release him since this would only be a voluntary arrangement, and it could not guarantee Cashman's supervision.

"There can be no other reason why Cashman should be denied parole," said Mr. Johnston in legal papers. "His behaviour has been exemplary and no issue as to his rehabilitation can be a concern for the board."

Mr. Johnston also pointed out that, although Cashman could be released on parole to stay in Bermuda, standard immigration policy would be to deport him immediately. Also, he would be unable to work here and find accommodation despite those being crucial factors in persuading the board that a prisoner should be released on parole.

Cashman, a former taxi driver from London, was convicted of importing $484,200 worth of heroin into Bermuda. The married father-of-two was arrested on October 5, 2003, after airport Customs and Police officers found 498.31 grams of heroin laced with Diazepam concealed in 16 laminated pictures he was carrying with him.

During his trial, he claimed he had been set up by a family friend who gave him the pictures to give to friends in Bermuda. In legal papers relating to his Supreme Court case, Cashman speaks of the devastating impact his incarceration has had.

"At the moment I don't even know if I have any family left speaking to me apart from my two sisters, who have stood by me. I don't hear from my family any more, I think the shame and disappointment of what I have been accused of has driven them away," he said.

Last July, a UK Government spokeswoman said it is working to standardise treatment of British prisoners and their parole in Overseas Territories. Bermuda's Minister of Home Affairs, David Burch also said legislative changes to enable foreign prisoners to obtain parole are under consideration.

Mr. Johnston said yesterday that no changes to the law have been made since. He is working on the case pro-bono ie in the public interest without compensation because Cashman has been denied Legal Aid.

"Legal Aid refused him the ability to argue this case and I find that quite disturbing. This issue is in dispute in a big broad public interest case," he told The Royal Gazette.

Government is contesting the case through Solicitor General Melvin Douglas. Mr. Justice Kawaley reserved his judgement until a later date, which has yet to be fixed.