A serving prisoner has successfully challenged the Government's refusal to allow him access to a confidential NHS phone line

In a judgment given last week, Paul Black, a serving prisoner at HMP Wymott, succeeded in his judicial review challenge of the Prison Service’s refusal to allow prisoners access to an anonymous and confidential telephone service that allows them to report cases of unauthorised smoking.

The judgment also opens the door to prison staff being prosecuted for failing to enforce the smoking restrictions.

In prisons in England, a prisoner is only allowed to smoke in his own cell with the door closed. However, 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).

This is despite both smoking in an unauthorised place and those in charge turning a blind eye to the smoking being criminal offences under the Health Act 2006.

In the wider community 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.

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

Rather prisoners would 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 made.

The Prison Service argued that, through the operation of Crown Immunity, properties owned by the State such as public prisons, were not subject to the provisions of the Health Act 2006 in relation to the restrictions on smoking and therefore were also not subject to enforcement action by the relevant local authority.

In light of this, there was no point in prisoners using the NHS telephone line to report unauthorised smoking.

In his judgment handed down yesterday, the Honourable Mr Justice Singh confirmed 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.

He declared the Prison Service’s refusal to grant Mr Black access to the NHS line was unlawful as it was based on the mistaken belief that that the Health Act does not bind the Crown.

As a result of this, the Prison Service are required to reconsider their decision.

The Prison Service have been granted permission to appeal against this judgment and will not be required to take any action until the appeal is heard.

Sean Humber, Head of the Prison Law Team at Leigh Day and Mr Black’s solicitor, stated: “This judgment confirms that the prison are not above the law and that prisoners are entitled to the same level of protection from the risks posed by second hand smoke as everyone else.

"The Health Act makes it an offence for someone in charge of a place where smoking is not allowed not to stop someone smoking where they shouldn’t.

"This judgment makes it clear that Prison Governors and staff who fail to take the necessary action to stop unauthorised smoking could face prosecution.

"Similarly, if unauthorised smoking is occurring in prisons and nothing is being done about it, then prisoners should have the same rights as everyone else to bring this to the attention of the independent enforcement body by ringing the NHS telephone line.