Life prisoner’s legal challenge over ‘unlawful’ exposure to tobacco smoke indoors refused

A judge in the Court of Session ruled that while the petitioner’s situation was “unfortunate and undesirable”, he was not persuaded that his detention in the circumstances was “disproportionate”.

Lord Armstrong heard that William Gage was serving a life sentence at HMP Shotts after being convicted of murder in 2004.

The court was told that he was not seeking a ban on smoking in all Scottish prisons, nor any form of ruling in relation to smoking outdoors, but what he wanted was to be held in a part of one of the 15 prisons comprising the Scottish prison estate where he would not be exposed to environmental tobacco smoke (ETS) indoors.

The general premise behind the petitioner’s submissions was that his detention in conditions believed to be “unsafe”, in circumstances where no attempt was made by the Scottish Ministers to provide alternative arrangements, constituted an “unreasonable exercise” of the respondents’ powers.

The petitioner’s evidence was that the majority of prisoners in HMP Shotts were smokers.

When inmates smoked in their cells their cell doors were often open, allowing smoke to enter and collect in the communal areas of the hall in which the petitioner’s cell was located and in his cell.

The petitioner had made a number of complaints about exposure to ETS between 2010 and 2013 and despite measures taken by him to restrict smoke entering his cell, it continued to smell of smoke at night.

He had also circulated a petition among some prison inmates, of whom 57 had confirmed that they would be interested in being detained on a non-smoking landing.

Although in a Scottish Prison Service document, entitled “Better health, better lives for prisoners: A framework for improving the health of Scotland’s prisoners”, it was recommended that consideration be given to the introduction of voluntary smoke-free wings, no such wings had been established.

It was submitted that despite recognising the issue of harmful exposure to ETS for some 10 years, the respondents had done nothing material to bring such conditions to an end.

The petitioner argued that the failure to address the issue of exposure to ETS was “equivalent to the failure to address the issue of slopping out”.

It was accepted by the respondents that long-term exposure to ETS posed health risks to non-smokers and it was a stated policy of the Scottish Government to seek to protect non-smokers from harm caused by ETS and to promote an environment in Scotland which was free from tobacco smoke, including the promotion of prisons which were smoke-free indoors.

However, it was not the case, as asserted for the petitioner, that the respondents had done nothing to address the issue of ETS for a period of over 10 years.

Lord Armstrong noted that the Scottish Government had “a stated policy designed to achieve the objective of a smoke-free prison service” as part of a change in culture in relation to smoking in Scottish society generally, which was apparent from the content of primary legislation, published policy documents, and, specifically in relation to prisons in Scotland, from measures put in place in order to reduce the harmful impact of ETS.

On the basis of the documentary productions to which reference was made in the course of this case, the “incremental implementation” of the policy had continued throughout the period beginning in about 2005 until the present day.

Refusing the petition, the judge observed that while the petitioner may complain about the “slow pace of change”, the implementation of the government’s stated policy was “not a straightforward task”.

Delivering the opinion of the court, Lord Armstrong said: “The facts of this case indicate that while it is clear that the respondents are alive to the petitioner’s concerns, nevertheless the appropriate means of addressing them necessarily requires consideration of the likely consequential greater impact on the entire prison service, and in particular the likely effect on the whole prison population and the management of the prison estate.

“That being so, having regard to the criteria of Wednesbury reasonableness, and allowing for the impact of the whole relevant context, in particular having regard to the fact that the implementation of the Scottish Government’s plans to deal appropriately with the issue of ETS is palpably underway but constrained in its progress by the need properly to take into account all material considerations, I am not persuaded that the exercise of the respondents’ powers to detain the petitioner, in the circumstances in which he currently finds himself, unfortunate and undesirable though that situation may be, is unreasonable and therefore unlawful or that it was or is being implemented on a basis which can be said to be otherwise irrational. I am persuaded, rather, that it does indeed fall within the range of reasonable responses to the prevailing situation.”