Welsh prison makes plans to go smoke free following challenge by prisoner

The Secretary of State for Justice has accepted that smoking is unlawful at HMP Parc, the private prison operated by G4S near Bridgend in Wales, and will now take steps to implement a complete smoking ban at the prison before 31 January 2016.

The announcement was made during an ongoing court case being brought by Leigh Day on behalf of a serving non-smoking prisoner.

The Health Act 2006 prohibits smoking in most enclosed premises save for particular identified exceptions.  Section 3 of the Act makes it clear that it is for national authorities in the United Kingdom to make regulations identifying any particular exempted premises.

In England, the Secretary of State for Health exempted prisons from the smoking ban.  The Regulations allowed prisoners to smoke in their own cells with the doors shut but not in communal areas of the prison.

However, in Wales, health is a devolved matter.  The comparable regulations made by the Welsh Government, the Smoke-free Premises etc (Wales) Regulations 2007 do not identify prisons as being exempt.

Despite this, up until now, the policy of Prison Service, which has overall responsibility for prisons in both England and Wales, has been that prisoners are able to smoke in their prison cells in Wales.

Our client, a life-long non-smoker, was a prisoner at HMP Parc although has now been transferred to a prison in England.  While at HMP Parc, he was repeatedly forced to share his prison cell with a succession of heavy-smoking prisoners. When he complained, he was told that this was necessary for “operational reasons”.  He also states that prison staff took no action to enforce the Prison Service’s policy that there should be no smoking in the communal areas of the prison.

Our client states that his exposure to cigarette smoke, particularly from being locked in a small prison cell with a window that didn’t open with a heavy smoker for 16 hours in a day, made him feel ill – it gave him repeated headaches a sore throat and made him feel sick.   He is also concerned at the health risks, including the risk of lung cancer and heart disease, to non-smokers caused by exposure to smoke from cigarettes.

Legal proceedings were commenced by our client against the Secretary of State for Justice, the person with responsibility for the Prison Service, arguing, that in light of the Regulations, the Prison Service’s policy of allowing smoking in Welsh prisons was unlawful.

In response, the Secretary of State is arguing, that through the operation of ‘Crown Immunity’, properties operated by the Government, such as publicly operated prisons, are not subject to the provisions of the Health Act 2006 or any Regulations made under it.  In light of this, smoking is lawful in publicly operated prisons in Wales.

The issue of whether Crown Immunity applies to publicly operated prisons has already been considered in another recent case brought by a non-smoking prisoner in which Leigh Day are also instructed.

In an emphatic judgment earlier this year, the High Court found that prisons were not covered by Crown Immunity and therefore that the Health Act and the Regulations made under it, applied to prisons.  The consequence of this judgment is that no smoking would be allowed in any Welsh prisons (publicly or privately operated).

The Secretary of State is appealing this judgment and the matter is likely to be heard by the Court of Appeal later this year.  In the meantime, pending the outcome of the appeal, the Court has put on hold the need for the Secretary of State to carry out the terms of the High Court judgment.

In this case, the parties have agreed to await the outcome of the Court of Appeal in this other case, before considering the position of smoking in the publicly operated prisons in Wales

However, even the Secretary of State for Justice accepts that Crown Immunity can only apply to publicly operated prisons and does not cover privately operated ones.

There is one private prison in Wales – HMP Parc.  The Secretary of State accepts that smoking at HMP Parc is unlawful and, in light of this, that he has agreed to take the necessary steps for the prison to become completely smoke-free by 31st January 2016.

Sean Humber, head of the Prison Law Team at Leigh Day and the solicitor for the non-smoking prisoner bringing the case, stated

“My client is pleased that the Prison Service is at last beginning to take seriously the rights of non-smoking prisoners to live in a healthy environment. As a life-long non-smoker, it was not acceptable to repeatedly force him to share a small cell with smokers or to have to endure smoking in the communal areas of the prison.  He describes the experience as “like living in an ashtray”. His exposure to cigarette smoke made him feel sick and gave him repeated headaches and a constant sore throat.  He was also concerned about the long term health problems caused by exposure to the smoke.

“The precise steps that the Prison Service now takes is a matter for it.  However, the bottom line is that these measures need to protect non-smokers’ health and allow them to live in a healthy smoke-free environment.”