Part 1 of 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 issue before the court was whether the provisions of the Act relating to the smoking ban applied to Government properties, including public sector prisons such as HMP Wymott.

In this case, the court considered that there were strong points both in favour and against Part 1 of the Act applying to Government properties but ultimately, and “not without considerable reluctance”, decided as a matter of statutory interpretation that the smoking ban did not apply to Government properties.

Paul Black stated:

“I am disappointed with the judgment. Throughout this case, I simply wished 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.”

Sean Humber, head of the prison law team at Leigh Day and Mr Black’s solicitor, stated:

“In this case the Government argued that a deliberate decision was made to exclude Government properties, including public sector prisons, from the provisions of the Health Act making it a criminal offence to smoke in enclosed places.

"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. All of this 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?

“This judgment has far wider implications than simply the issue of smoking in prisons. It confirms that thousands of Government properties, including, for example, Courts and Jobcentres, are not covered by the provisions of the Health Act prohibiting smoking in enclosed places. 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 work, live or visit these properties.”