Category Archives: Judicial Review

Prisoner takes smoking case to the Supreme Court

smoking in prison

Extra. Personal View: Mark Leech

A prisoner with health problems is taking his battle to make smoking in jails a crime to the UK’s highest court.

The move by Paul Black, an inmate at HMP Wymott in Lancashire, follows his defeat at the Court of Appeal last year.

He originally won a High Court declaration in 2015 that the legal ban on smoking in public places under the 2006 Health Act must also be applied to state prisons and other Crown premises in England and Wales.

But Court of Appeal judges later allowed a Government challenge against that decision.

The judges said the Crown was not bound by the Act and the ban, which came into force in July 2007, did not apply in public sector prisons.

A panel of five Supreme Court justices, headed by president Lady Hale, will hear the latest round of the litigation on Tuesday.

The issue they are being asked to decide is whether the Crown is bound by the Health Act “by necessary implication”.

Black, a sex offender serving an indeterminate sentence since 2009, launched legal action complaining that prison smoking rules were being flouted and should be legally enforceable.

The Health Act places restrictions on smoking in public places and workplaces, making it a criminal offence to smoke in an unauthorised place and also an offence for those in charge of the premises to turn a blind eye to the smoking.

Black argues he and other prisoners should have confidential and anonymous access to the NHS Smoke-Free Compliance line which enables members of the public to report breaches of the law to the local authority.

The Justice Secretary has refused his request, contending it would serve no purpose since the Act does not bind the Crown, which administers the prison.

Government lawyers had warned the appeal court that a ”particularly vigorous” ban in state prisons could cause discipline problems and risk the safety of staff and inmates.

A Prison Service spokesman said after the appeal court’s ruling that it meant smoke-free prisons could be rolled out in a “safe and secure way”, ensuring that staff and prisoners “are no longer exposed to second-hand smoke, while not compromising the safety and security of our prisons”.

When given the go-ahead to take his case to the Supreme Court, Black said in a statement: “I simply wish non-smoking prisoners and prison staff to have the same level of protection from the risks of second-hand cigarette smoke as non-smokers living in the wider community.”

His lawyer Sean Humber, head of human rights at law firm Leigh Day said: “In this case, the issue is whether the restrictions on smoking indoors introduced by the Health Act 2006 apply to over a thousand Government owned and operated premises, including prisons, throughout the country.

“Our client simply believes that those living, working and visiting these premises should have the same protections from the health risks posed by passive smoking as everyone else.”

A Prison Service spokeswoman said: “We have long been committed to a smoke-freeprison estate and this is being phased in over a long period of time.

“This phased introduction will reduce the risk to staff and prisoners of exposure to second hand smoke and prisons will only become smoke-free when it is appropriate to do so.”

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