The Guardian
Government lawyers had argued that a compulsory ban could cause discipline problems and risk staff and prisoner safety
The ban on smoking in public places does not apply to state prisons and other crown premises in England and Wales, the appeal court has ruled. Photograph: Alamy
A compulsory, immediate ban on smoking in prisons has been overturned by the court of appeal, allowing the Ministry of Justice to introduce its own voluntary, phased controls.
Bans affecting three jails in Wales came into effect in January. The MoJ said it still intended to impose restrictions on tobacco but would have greater freedom in implementing its policy.
The court of appeal ruling is a defeat for Paul Black, a sex offender who is an inmate at HMP Wymott in Lancashire. He has been serving an indeterminate sentence since 2009 and won a high court ruling last year in favour of a compulsory legal smoking ban on health grounds.
Black complained that prison rules were being flouted and needed to be made legally enforceable under part 1 of the 2006 Health Act, which came into effect in July 2007.
Government lawyers had warned at a recent hearing that a “particularly vigorous” ban on smoking in state prisons could cause discipline problems and risk the safety of staff and inmates. The cautious approach to implementation follows warnings from prison governors that it risks increasing instability in jails.
More than four in five prisoners smoke and, while a ban on smoking in communal areas has been in force for some time, inmates have been allowed to smoke in their cells.
The latest ruling by three court of appeal judges – Lord Dyson, master of the rolls, Lord Justice McCombe and Lord Justice David Richards – concludes that the ban on smoking in public places does not apply to state prisons and other crown premises in England and Wales.
Four prisons in south-west England – Exeter, Channings Wood, Dartmoor and Erlestoke – were due to introduce the ban this month. The ban already applies to private prisons as they are not crown premises.
MoJ sources said the ruling would not affect the phased introduction of the ban on smoking in prisons in England and Wales. It will eventually be implemented in all 136 prisons in England and Wales.
A Prison Service spokesperson said: “The result of this appeal means we are able to roll out smoke-free prisons in a safe and secure way. While the Health Act 2006 will not legally bind the crown properties, including prisons, the smoking ban will be implemented as a matter of policy.
“Our careful approach will ensure staff and prisoners are no longer exposed to secondhand smoke, while not compromising the safety and security of our prisons.”
Air-quality tests carried out last year in six prisons showed staff were spending at least one-sixth of their time breathing in secondhand smoke levels higher than World Health Organisation standards.
Responding to the decision, Sean Humber, head of human rights at the law firm Leigh Day, which represented Black, said: “The court of appeal’s judgment is disappointing as it denies non-smoking prisoners and prison staff the same legal protection from the dangers posed by secondhand smoke as the rest of us.
“It seems absurd to our client that, despite the Health Act specifically identifying controls on smoking in ‘prisons’, the act is to be interpreted as not applying to public sector prisons that make up the vast majority of prisons in England and Wales.
“Given that our client’s case was successful in the high court, we are now discussing an appeal to the supreme court with our client.”
