Supreme court to consider appeal to enforce smoking ban in UK jails

Owen Bowcott and Alan Travis
Prisoners can smoke in their cells, but smoking is currently being phased out in communal areas. Photograph: Dan Kitwood/Getty

The remaining rights of prisoners to smoke inside their cells are to be challenged at the supreme court in a case which, if successful, could inflame discipline problems in prisons.

The appeal has been brought by Paul Black, a prisoner at HMP Wymott, on the basis of fresh evidence from a Ministry of Justice medical report on air quality behind bars which warns that “secondhand smoke harms everyone”.

Black, who has heart problems, lost his claim at the court of appeal in March 2016. Government lawyers argued at the time that a blanket ban on smoking in public-sector prisons could cause discipline problems and risk the safety of staff and prisoners. The judges ruled that state, as opposed to private, prisons enjoyed crown immunity from the health regulations.

The supreme court has given permission for Black’s appeal to be heard in October. An air quality report by Prof John Britton of the University of Nottingham’s centre for tobacco and alcohol studies, published by the MoJ after the last hearing, warned that: “Even the smallest amount of exposure to secondhand smoke carries a reasonable probability of injury.”

It added: “Indoor levels of particulate pollution in smoking areas of the prisons we studied exceeded the World Health Organisation 24-hour limit some of the time, the annual limit much of the time, and the safe limit for secondhand smoke exposure (zero) almost all of the time … Secondhand smoke harms everyone. However, people with a history of cardiovascular disease are probably at increased risk of acute exacerbation with short-term exposure.”

There have been several riots and disturbances in prisons over the last few months, notably at Birmingham prison in December, and conditions inside jails remain volatile.

More than 80% of prisoners smoke. A ban on smoking in communal areas is being introduced, but prisoners are currently allowed to smoke in their cells when their doors are shut.

Black maintains that the prison rules are being flouted and needed to be made legally enforceable under the 2006 Health Act. He alleges that prisoners routinely smoke in common parts of jails and that non-smoking prisoners cannot phone the confidential NHS helpline to report instances of unauthorised smoking in workplaces.

The Prison Governors Association (PGA) has, for a long time, encouraged the MoJ to consider an implementation plan for smoke-free prisons in England and Wales.

In a September 2015 statement, the PGA said: “In line with a number of other employers, many prisons have adopted a smoke-free policy for staff and visitors, and with the introduction of e-cigarettes, this can be further extended to prisoners accommodation, with the necessary support in smoking cessation.”

The MoJ has said it is phasing in smoke-free prisons and it will encourage prisoners to stop smoking through advice and nicotine-replacement therapy. It has, however, given no final date for smoke-free prisons. The Prison Reform Trust has urged that prisoners should still be allowed to smoke in exercise yards outside prison buildings.

In a statement released by his lawyers, Leigh Day, Black, a convicted sex offender, said: “On behalf of the thousands of non-smoking prisoners and prison staff in prisons throughout the country, I am pleased that the highest court in the land has confirmed that it wishes to consider my case.

“I simply wish non-smoking prisoners and prison staff to have the same level of protection from the risks of secondhand cigarette smoke as non-smokers living in the wider community.

“I personally do not have a problem with prisoners smoking in their cells if they keep their doors shut and as long as the smoke does not then escape into communal areas. However, when they smoke in their cells with their doors open or in the communal areas of the prison, this means that I am forcibly exposed to secondhand cigarette smoke against my will and can do little or nothing to stop it.”

Sean Humber, head of the prison law team at Leigh Day, stated: “The Ministry of Justice’s own expert reports confirm that the levels of secondhand smoke in many communal areas in prison exceed World Health Organisation air quality limits, that there is really no safe level of exposure to secondhand smoke and that people suffering from cardiovascular disease, such as our client, are at particular risk.

“Given the scale of the public health risk, it seems clear that parliament intended for the restrictions on smoking in public places set out in the Health Act to apply to prisons, not least because prisons are actually referred to in the legislation itself.

“In practical terms, these provisions are important not only because they make it a criminal offence to smoke in an unauthorised place, but also because they make it a criminal offence for the person in charge of the premises to allow the smoking to occur. We currently have the farcical situation where the provisions of the act seem to apply in private prisons but not public sector ones.”

“It is all very well for the Ministry of Justice, repeatedly saying that their long-term plan is for prisons to eventually go completely smoke-free. They having been saying this for years and there remains no firm timetable for it actually happening. In the meantime, by continuing to try and wriggle out of their existing legal obligations in relation to ensuring that the communal areas of prisons being smoke-free, the Ministry of Justice are making it far harder for non-smoking prisoners to take effective action to stop unauthorised smoking.”

A Prison Service spokesperson said: “We have long been committed to a smoke-free prison estate and this is being phased in over a long period of time. This will ensure staff and prisoners are no longer exposed to the harmful effects of second-hand smoke, while not compromising the safety and security of our prisons.”