A legal battle is being fought by an inmate in Lancashire to give prisoners the right to report unauthorised smoking in jail – including by prison staff – via a confidential health hotline.
Paul Black, an inmate at HMP Wymott suffering from a range of health problems made worse by second-hand smoke, is seeking a judicial review.
He says both staff and prisoners in his prison are guilty of illicit lighting up and not enough is being done to stop them.
He is challenging at London’s High Court a decision of Justice Secretary Chris Grayling backing the prison governor’s decision not to allow prisoners general access to the NHS freephone smoke-free compliance line.
Confidentiality is necessary to avoid reprisals from fellow prisoners who might feel the line is being used to “grass them up”, a judge was told.
Although he now personally has the right to access the line, Black argues that still leaves him vulnerable to being singled out and targeted, and access must be made available to all inmates.
The compliance line enables members of the public to seek enforcement of provisions of the Health Act 2006 which ban smoking in enclosed public places.
Lawyers for the Justice Secretary argue Crown Immunity prevents the Health Act provisions applying to state prisons.
They maintain prison rules and regulations, especially the sanction of withdrawal of privileges, are sufficient to deal with incidents of unauthorised smoking.
Black, who has been at Wymott since 2009 and is serving an indeterminate sentence, is seeking judicial review and accusing the Justice Secretary of breaching his own rules, as well as human rights laws.
Shaheen Rahman, representing Black, told the High Court it was accepted on all sides that about 80% of prisoners smoke.
Black complained of being frequently exposed to second-hand smoke in areas of the prison where smoking was prohibited, in particular on landings, in laundry rooms and in healthcare waiting rooms.
Ms Rahman told Mr Justice Singh it was Black’s case, corroborated by three other prisoners, that prison staff “appeared to turn a blind eye” and failed to enforce the ban on smoking outside designated rooms.
She submitted: “Having regard to the scientific evidence of the dangers of smoking, the claimant’s own health concerns inevitably make him more vulnerable to disease and he should not be exposed to second-hand smoke.”
It was not until Black launched judicial review proceedings that the prison agreed to personally give him access to the compliance line, but that fell short of his request that “all prisoners” should have access, said Ms Rahman.
Although he could personally make calls these might be subject to routine monitoring and lack confidentiality.
Ms Rahman said staff could be among those reported for unauthorised smoking, and the prison officer who had told him he was getting access to the line had referred to it as “the grass line”.
Asking the court to dismiss the case, Jonathan Hall QC argued that when it came to state prisons the Crown was not bound by the Health Act, or its criminal sanctions for smoking in restricted areas.
He submitted refusing global access to the confidentiality line did not violate the European Convention on Human Rights or conflict with prison rules.
Prisoners were already allowed confidential access to certain lines, including the Samaritans, but there was a risk that allowing access to more could lead to possible abuse.
Mr Hall argued: “The line has to be drawn somewhere in the interests of security and good order.”
The judge said the case raised important issues and he would give his decision as soon as possible.
Mark Leech, editor of Converse the national prisons newspaper said the Government was in a mess over its no smoking policy.
Mr Leech said: “Personally I don’t smoke but the government is in a mess over its no smoking prisons policy and this case brings that mess into sharp focus.
“They have said for five years they will ban smoking in prison, but for reasons I fully understand they have failed to implement it.
“They either need to get on and ban all smoking in all parts of a prison, dealing with the undoubted dangers in terms of control that policy implementation will bring with it, or do much more to enforce the ban on smoking in communal areas by staff and prisoners which is at the root of this case – what they can’t do is continue to do nothing.”