Smith, R (on the application of v Secretary of State for Justice and G4S UK Ltd  EWCA Civ 380 – read judgment
This case raises the question of whether it is a breach of a non-smoking prisoner’s Convention right to respect for his private life and to equality of access to such rights (ECHR Articles 8 and 14) to compel him to share a cell with a smoker.
The appellant, a convicted sex offender serving a long sentence, was required between 21st and 28th March 2012 to share a cell with a fellow prisoner who was a smoker. It was known to the prison authorities that the appellant was a non-smoker, and the requirement to share with a smoker was contrary to his wishes. The sharing complained of ended when the appellant was transferred to another prison on 28th March 2012.
This application for judicial review was not a blanket attack on smoking in prisons. It was concerned with what was said to be a conflict between two policies: firstly a policy that non-smokers should not be exposed to second-hand smoke in prisons, and secondly, a policy that all cells are to be certified as rooms where smoking can take place within prisons. Mostyn J in the court below had dismissed the application on the basis of his conclusion that Article 8 was not engaged on the facts of the case, and and therefore the arguments under Article 14 fell away too.
Policy PSI 09/2007 was issued by HM Prison Service, an agency of the Ministry of Justice, on 2nd April 2007. It it is still in force and permits prisoners over 18 to smoke in single cells or cells shared with other users, although it also states that “non smokers must not be required to share a cell with smokers who are actively smoking”.
Arguments before the Court
G4S contended that the cell-sharing had taken place because of operational needs on a temporary basis due to the high turnover of inmates of the particular prison, and the need to maintain safety, discipline and good order within the prison.
The appellant argued, inter alia, that:
- his right to a private life under Article 8(1) was infringed by the failure of the respondents to protect his health, in the sense that there was a failure to safeguard him against the risk to his health from second-hand smoke whilst he was held in custody.
- the first respondent’s policy was defective in that a cell would remain a designated smoking area notwithstanding the fact that a non-smoker might have to share with a smoker for operational reasons. Prison governors should have discretion under this policy to change the designation of a cell in these circumstances so as to prevent smoking within it.
- without this discretion, the policy unfairly prioritised the wishes of smokers over non-smokers, and put non-smokers, against their will, at the risk of damage to their health.
- the appellant had been treated differently to the public at large because he was being required to share a cell with a smoker. The difference in treatment came within the scope of Article 14 because being a prisoner amounts to a “status” within Article 14.
The Court of Appeal dismissed the appeal.
Reasoning behind the decision
Several complaints about smoking in prison have been made to the Strasbourg Court, but have all been rejected as inadmissible. So the appellant sought assistance from the successful complaint in Fadeyeva v Russia  45 EHRR 10. That was a case involving environmental pollution resulting from toxic emissions from an industrial plant. The Strasbourg court held that the fact that the state was well aware, both of the existence and scale of the problem, and was in a position to prevent or reduce them was sufficient to engage the positive obligation under Article 8. The pollution was found to be responsible for a huge increase in the number of children with respiratory and skin diseases and an increased number of adult cancer deaths. Treacy LJ, giving judgment in the instant case, noted that the level of harm involved in Fadeyeva was in a “wholly different league” from exposure to passive smoking over a period of seven days. Relying on the Court’s observation there that
the adverse effects of environmental pollution must attain a certain minimum level if they are to fall within the scope of Article 8
his Lordship did not consider that there was anything in Fadeyeva which enabled it to be said that, in the circumstances of this case, a sufficient level of severity was attained so as to constitute interference with this appellant’s rights. The absence of a consensus amongst member states in relation to passive smoking in prisons was no doubt a major factor militating against favourable reception by Strasbourg of these sorts of complaints. Put another way, the Court accords a particularly wide margin of appreciation applying in the area of preventive measures for prisons, in which considerations of priorities, resources and social policies come into play. Although the Strasbourg Court has acknowledged the potential for exposure to second-hand smoke to engage Article 8 rights, that question was not to be viewed in a vacuum, but was to be assessed in the light of the facts and circumstances of the case:
It seems to me that there is nothing in the European jurisprudence which would suggest that on the facts of this case, involving a relatively short exposure of a non-smoker to passive smoking, the necessary minimum level for interference has been attained. I am unpersuaded that the appellant’s experience was of an intensity, duration and effect to amount to interference with his Article 8 rights. There is no clear and consistent jurisprudence of the European Court to suggest otherwise, and I am mindful of the principle that the Convention should not be interpreted or applied in our domestic courts more generously than the Strasbourg jurisprudence clearly requires. [para 48]
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