The UK's highest Court has given permission to a non-smoking prisoner to appeal against a judgment that the legal restrictions on smoking do not apply to public sector prisons.

The Supreme Court has given permission to Paul Black, a non-smoking serving prisoner at HMP Wymott, to appeal against the Court of Appeal’s judgment that the legal restrictions on smoking in public places or the workplace do not apply to public sector prisons.

The matter is listed for a day and a half hearing in the Supreme Court on 31st October and 1st November 2017.

The Health Act 2006 places restrictions on smoking in public places and workplaces with only a small number of 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.

The Health Act 2006 and Regulations made under it explicitly refer to prisons as one of the exemptions and specifically allow smoking by prisoners in their own cells with the doors shut but not in the communal areas of the prison. The Prison Service published its own detailed policy reflecting this.

Unfortunately, a common problem reported by non-smoking prisoners such as our client is of prisoners routinely smoking in areas that they shouldn’t, including the communal areas of the prison. Furthermore, our client reports prison staff generally turning a blind eye to the problem (and even occasionally smoking themselves).

In the wider community, members of the public are able to call a confidential NHS telephone line to report instances of unauthorised smoking in public places or the workplace.

The information is passed on to the relevant local authority, the body responsible for taking action to ensure compliance with smoking restrictions. The local authority is then able to take action against both the person smoking and also the person in charge of the premises allowing the person to smoke.

Unfortunately in prisons, prisoners do not have confidential access to this NHS telephone line in the same way that they have access to other telephone numbers such as Crimestoppers, the Samaritans, etc.

Rather prisoners currently need to make a specific application for the number to be put on their individual PINphonbe account and the prison would be able to record and listen to any calls that they then make.

Our client argued that this was not acceptable and he should have access to the confidential NHS telephone line in the same way as members of the wider community. In response, the Prison Service argued that they have their own policy on smoking in prisons that largely mirrors the restrictions set out in the Health Act.

However, through the operation of Crown Immunity, properties owned by the State such as public prisons, are not subject to the provisions of the Health Act in relation to the restrictions on smoking and are therefore are similarly not subject to enforcement action by the relevant local authority. In light of this, there is no requirement to allow prisoners to call the NHS telephone line.

They argue that the reference to ‘prisons’ in the Health Act is simply to the small number of privately operated prisons to whom they accept that the Act does apply.

The High Court judgment found that the provisions in the Health Act 2006 restricting smoking in public places applied to public prisons and that they were not covered by Crown Immunity.

However, in its judgment, the Court of Appeal found that public sector prisons, although not privately operated ones, were covered by Crown Immunity and that that the restrictions on smoking set out in the Health Act therefore did not apply to them.

The Supreme Court will now consider the matter. The case raises important wider issues about the operation of Crown Immunity generally and how an Act should be interpreted to decide whether or not it applies to the Crown.

Paul Black stated: “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 second hand 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 second hand 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 and Mr Black’s solicitor, stated:

“The Ministry of Justice’s own expert reports confirm that the levels of second hand smoke in many communal areas in prison exceed World Health Organisation air quality limits , that there is really no safe level of exposure to second hand 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.”