A High Court judge declared in March last year that the ban on smoking in public places applies to public prisons and all Crown premises.
The decision was a victory for Paul Black, an inmate at HMP Wymott in Lancashire, who said he suffered from a range of health problems made worse by second-hand smoke.
The court was told of fears that rigorously imposing the ban could lead to unrest in the jails of England and Wales.
Mr Justice Singh rejected arguments of the then Justice Secretary Chris Grayling that the 2006 Health Act, which makes smoking a criminal offence in enclosed public places and workplaces, does not “bind the Crown” and does not apply in public prisons.
The judge declared: “In my judgment it is clear from the terms of the 2006 Act…that the intention of Parliament was indeed that it should apply to all public places and workplaces which fell within its scope, including those for which the Crown is responsible.”
Because of the wide-ranging importance of the case, the judge postponed his ruling taking effect to give the Justice Secretary time to appeal to the Court of Appeal.
The judge acknowledged concerns in the Prison Service over the impact of his decision on “prisoners who feel the need to smoke and may be resistant to the criminalising of that conduct in places where in my view the Health Act does apply”.
Black, a sex offender who had been at Wymott since 2009, said staff and prisoners were guilty of illicit lighting-up in areas where it was not allowed and not enough was being done to stop them.
Smoking is permitted in the cells of public prisons with the doors shut, but not in communal areas. The Health Act already applies to private prisons as they are not Crown premises.
Shaheen Rahman, representing Black, told the court that he was frequently exposed to second-hand smoke in areas of the prison where smoking was prohibited, in particular on landings, laundry rooms and healthcare waiting rooms.