The ban on smoking in public places must be enforced in state prisons as well despite warnings that it could provoke widespread unrest in jails across England and Wales, a high court judge has ruled.
Mr Justice Singh said the justice secretary “wrongly understood” an exemption under 2006 health legislation banning smoking in workplaces and enclosed public places to argue that it did not bind the Crown to enforce the ban in state prisons.
In his ruling that the smoking ban should be extended to prisons, the judge acknowledged that there were “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”.
The ruling is a victory for Paul Black, an inmate at HMP Wymott in Lancashire, who told the court he suffers from health problems made worse by second-hand smoke. He wanted a ruling giving him access to an NHS helpline to report those, including officers, who were smoking in public places in the prison including landings, laundry rooms and the healthcare waiting room. One officer referred to the NHS helpline as the “grass line”.
More than 80% of prisoners smoke and the justice ministry pushed hard for the exemption when the health legislation went through parliament. Prison governors and unions have repeatedly warned that enforcing a ban on smoking in prisons could trigger serious control problems as tobacco is used as currency as well as a legal stimulant.
An exemption in the 2006 Health Act does provide for smoking to be allowed in enclosed public places where someone has their home or they live, either permanently or temporarily, such as a prison, hotel or long-term care home. The exemption, however, also says that designated smoking rooms should be provided in such cases.
This was interpreted at the time as meaning prisoners could smoke in their cells but not in the common parts of the jail. The high court judge says the justice ministry has wrongly understood that to mean that they did not have to enforce the smoking ban in state prisons. Smoking has been banned in some specific parts of prisons, such as workshops, for some time. Staff are also supposed to be banned from smoking in the common parts of prisons.
The justice ministry, which has also faced pressure from some staff to be spared the dangers of passive smoking, has implemented a pilot scheme: in three prisons, e-cigarettes have been offered as an alternative but the scheme has not proved successful.
In his ruling, Mr Justice Singh, said: “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.” He has, however, given the justice secretary time to appeal to the court of appeal and postponed the implementation of his ruling.
The judge rejected the argument by the justice secretary, Chris Grayling, ’ that the 2006 Health Act did not “bind the Crown” and so did not apply in state prisons.
The high court judge added that the justice ministry needed to reconsider its decision to deny the prisoner who brought the judicial review access to the NHS helpline to enforce the ban: “As I have already said, in my judgment, the secretary of state has proceeded on an understanding of the law which is wrong. Accordingly, the secretary of state would be expected to reconsider his decision in accordance with law.”
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