Bid to ban smoking in prisons rejected by Supreme Court

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Dec 20, 2017
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A prisoner at HMP Wymott, Paul Black, had argued that the Health Act 2006 included prisons in its ban on smoking in public places

Peter Byrne/PA

Prisoners can still smoke in British jails as the country’s highest court yesterday confirmed that prisons could continue to be exempt from the ban on smoking in public places.

Five Supreme Court justices, led by Baroness Hale of Richmond, the court’s president, rejected an appeal from a prisoner at a jail in Lancashire who had challenged the exemption.

The Health Act 2006 imposed restrictions on smoking in public places and workplaces but it incorporated a few exceptions. The act makes it a criminal offence to smoke in an unauthorised place. It also makes it a criminal offence for those in charge of the premises to turn a blind-eye to the smoking.

Paul Black, a non-smoking prisoner at HMP Wymott, a category C institution in Preston, brought a claim maintaining that provisions of the act relating to the smoking ban should also apply to government properties, including prisons. But the court rejected the argument, finding that the legislation “does not say the smoking ban binds the Crown”, a position that “contrasts with similar statutes”, such as the Health and Safety at Work Act 1974, which contain express provisions on how and to what extent they apply to the Crown.

Sean Humber, a partner at Leigh Day, the London law firm that acted for Black, said that the court “confirmed that when an act does not explicitly say that it applies to the government, there remains a presumption that it doesn’t unless the context and purpose of the legislation shows that parliament must have meant the government to be bound”. Humber said that the ruling “rather smacks of a bygone age of undue deference.  Why shouldn’t those living, working or visiting government properties be subject to the same laws, and indeed benefit from the same legal protections, as the rest of us?”

Lawyers argued that the judgment would have wider implications. “It confirms that thousands of government properties, including, for example, courts and Job Centres, are not covered by the provisions of the Health Act prohibiting smoking in enclosed places,” Humber speculated. “While many of these buildings even have signs saying it is against the law to smoke in them, these turn out to be incorrect. In light of this, the government must now take urgent action to change the law to properly protect the millions of people who work, live or visit these properties.”

Joining Lady Hale on the bench were Lord Mance, the deputy president, Lord Kerr of Tonaghmore, Lord Hughes and Lord Lloyd-Jones.

Leigh Day instructed Philip Havers, QC, and Shaheen Rahman, QC, both of 1 Crown Office Row chambers in the Temple. The government legal service acted for the justice secretary and instructed James Eadie, QC, of Blackstone Chambers in the Temple.

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