Court of Appeal overturns state prison smoking ban

The Court of Appeal has ruled that a ban on smoking in public places does not apply to state prisons.

The decision follows a High Court ruling last year that found in favour of a compulsory smoking ban on health grounds.

The action was brought by convicted sex offender and HMP Wymott inmate, Paul Black, who claims to have suffered from ill health due to frequent exposure to second-hand smoke.

Black successfully argued that the no-smoking rule was being flouted by other inmates and prison staff and that part 1 of the Health Act 2006 needed to be enforced.

Challenging the High Court's ruling, the government argued that a 'particularly vigorous' ban on smoking in prisons had the potential to cause discipline problems and risk the safety of prisoners and staff.

The Master of the Rolls, Lord Dyson, sitting alongside Lord Justice McCombe and Lord Justice David Richards in the Court of Appeal, held that the ban on smoking in public places does not apply to state prisons and other crown premises.

Smoking is normally not allowed in state-run prisons, except in designated smoking cells and the ban already applies to private prisons.

Sean Humber, a partner and head of human rights at the law firm Leigh day, who represented Black, said that the court's ruling was 'disappointing' as it denied non-smoking prisoners and prison staff the same legal protection from the dangers posed by second hand smoke as the rest of the public.

'It seems absurd to our client that, despite the Health Act specifically identifying controls to smoothing 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,' he added.

'Given that our client's case was successful in the High Court, we are now discussing an appeal to the Supreme Court.'

The ruling comes hot on the heels of a government crackdown on prisoners bringing claims for compensation while incarcerated.

The justice minister, Dominic Raab MP, said: 'We have ordered an independent audit to make sure we are not being taken for a ride.'

However, Leigh Day's Humber told SJ that the audit was 'desperate attempt to deflect attention' from the current crisis in the prison system.

'Any increase in compensation claims seems far more likely to be as a result of the deteriorating conditions which place the safety of prisoners at risk on a daily basis,' said the human rights lawyer.