Smith, R (on the application of) v Secretary of State for Justice & Ors [2014] EWCA Civ 380

Case No C1/2013/0223[2014] EWCA Civ 380
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the Administrative Court
Mr Justice Mostyn
CO/6463/2012
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 01/04/2014
Before
LORD JUSTICE MAURICE KAY, VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISIONLORD JUSTICE AIKENSLORD JUSTICE TREACY
Between
The Queen (on the application of Solomon Smith)Appellant
Mr Hugh Southey QC (instructed by Leigh Day & Co) for AppellantMr Jonathan Hall (instructed by Treasury Solicitor) for First RespondentMr Scott Matthewson (instructed by Berrymans Lace Mawer LLP) for Second RespondentHearing Hearing date: Thursday 6th March 2014
Judgment

The Background to the Appeal

[1]This is an appeal against the refusal by Mostyn J sitting in the Administrative Court of permission to apply for judicial review. Following a refusal of permission to appeal on sight of the papers by Beatson LJ, Sir Stephen Sedley granted permission to appeal after hearing oral submissions on behalf of the appellant, together with permission to apply for judicial review, and ordered that the matter be retained in this court.[2]The issue before the court relates to smoking in prisons. In particular the question is 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.[3]In March 2012 the appellant was a convicted sex offender serving a long sentence. At that particular time he was lodged at HMP Birmingham (Winson Green), a prison which had been operated by G4S since 1st October 2011. The appellant 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.[4]This matter is not concerned with a blanket attack on smoking in prisons. It is concerned with what is 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.[5]For the appellant it is submitted that his rights under Article 8(1) are engaged and that they have been interfered with. Additionally, it is submitted that irrespective of whether Article 8(1) is engaged, the matter comes within the broad ambit of Article 8 so that the provisions of Article 14 in any event come into play.[6]The Secretary of State for Justice has been joined as a defendant on the basis of a policy (PSI 09/2007), which is said not sufficiently to prevent the exposure of non-smoking prisoners to second-hand smoke whilst incarcerated.[7]The appellant’s case is that the policy violates his Article 8 rights, and unjustifiably discriminates against prisoners as compared with the position of the general public so as to contravene Article 14.[8]The claim against G4S raises similar issues based on G4S’s operational decision to move the appellant to the cell concerned on 21st March, leaving him there until 28th March 2012.[9]The respondents deny interference with Article 8 or Article 14 rights, and further assert that if there was any interference, it was proportionate and justified in the circumstances.[10]In refusing permission to apply for judicial review, Mostyn J concluded that Article 8 was not engaged on the facts of the case, and in dismissing the application did not appear to express any separate conclusion in relation to Article 14. He did not go onto assess proportionality, observing that the decision was a political one. Plainly questions of proportionality or justification only arise if the necessary thresholds of engagement and interference have been crossed.

Legislative/Policy Background

[11]The underlying history is that the Health Act 2006 brought into force with effect from 1st July 2007 a prohibition of smoking in certain premises, places and vehicles. Section 2 defines smoke-free premises. They include premises open to the public and premises used as a place of work by more than one person. Such premises are smoke-free only in those areas which are enclosed or substantially enclosed. Section 3 provides for premises to be exempted by regulations. Section 3(2) envisages prisons as a place which may be specified as subject to an exemption.[12]The Smoke-Free (Exemptions and Vehicles) Regulations 2007, made pursuant to the Act, grant exemptions. Regulation 5 covers prisons. It provides:
“(1) A designated room that is used as accommodation for persons aged 18 years or over in the premises specified in paragraph (2) is not smoke-free. (2) The specified premises are - … (c) prisons.

(e) …”

[13]As to policy, PSI 09/2007 was issued by HM Prison Service, an agency of the Ministry of Justice, on 2nd April 2007. It is still in force. The introduction contains the following (with original emphasis):
“The desirability of attaining a 100% smoke free prison estate in the future is acknowledged, but prison service policy for now is for prisoners aged 18 and over to be permitted to smoke in single cells or cells shared with other smokers. Governors may introduce smoke-free landings and/or wings where appropriate and feasible, following consultation with staff and prisoners, but this must not undermine the general policy which permits prisoners over 18 to smoke in single cells or cells shared with smokers. ”
[14]Under a heading “Local policies will need to implement the following to meet the requirements of the Act” PSI 09/2007 specifies a number of matters including: i) Governors will designate all cells containing up to four persons as places where smoking is permissible when occupied only by smokers. ii) Cells in adult establishments must be certified in writing as rooms in which smoking may take place.[15]Under the heading “Non-smokers sharing cells with smokers” the policy states as follows:
“Non-smokers must not be required to share a cell with smokers who are actively smoking. The status of a prisoner as a smoker or non-smoker should be established as part of reception procedures. Thereafter, arrangements must be made to place non-smokers and smokers in separate accommodation.”
[16]HMP Birmingham local policy came into being before the transfer to G4S and continued in force after transfer. Paragraph 2 contains the following:
“The security, order and control of the establishment are of paramount importance. Many of the prisoners deprived of the ability to smoke during their stay in the prison may show hostile and uncooperative actions towards staff. The ability to retain the right to smoke in designated areas may contribute to counter-balance the effects of such predicted behavioural concerns. The existing legislation makes allowance for this provision.”
[17]At paragraph 4.2 the policy provides:
“Smoking will not be permitted except in designated smoking cells and in exercise yards during designated exercise periods. Prisoners must be asked on reception whether they are a smoker or non-smoker. Non-smokers must not be required to share a cell with smokers who are actively smoking (PSI 09/2007, para 8, p.2).”
[18]In accordance with PSI 09/2007 all prison cell accommodation at HMP Birmingham was designated on 1st July 2009.[19]The evidence showed that the policy of not requiring non-smokers to share a cell with active smokers was mandatory, or, at least, mandatory subject to pressing operational requirements.[20]In September 2012 the board of the National Offender Management Service (NOMS) accepted in principle the recommendation that prisons should become smoke free. However, the timing of the implementation of that policy has not yet been decided and is being considered in the light of the broader operational context.

Evidence

[21]The evidence shows that up to 21st March 2012 vulnerable prisoners, which includes sex offenders, were detained on P wing at HMP Birmingham. An HMP inspection report of January 2012 stated that sex offenders were being bullied by non-sex offenders. As a result G4S decided to separate sex offenders from other vulnerable offenders. The sex offenders, including the appellant, were to be transferred to G wing, which had 111 spaces. Coincidentally there were 111 prisoners to accommodate.[22]Following assessments 13 high risk prisoners had to be placed in single cells. That left 49 sharing cells for 98 prisoners. G4S then accommodated the wishes of prisoners wanting to share with another specific prisoner. The cells are intimate and prisoners prefer to share with people they know. Some 29 cells were filled by 58 prisoners who had previously shared a cell on P wing.[23]The remaining 20 cells were then allocated by reference to the following criteria:(a) safety risks arising from an assessment including the type of sexual offence committed by a prisoner;(b) the need for less agile elderly prisoners to be placed with an able bodied prisoner since the former cannot always get onto the top bunk bed;(c) whether the prisoners were smokers.[24]The appellant’s cellmate on P wing, a non-smoker, was not transferred to G wing, and the appellant did not request to share with any particular prisoner. Not all of the smokers and non-smokers could be kept together because of the Cell Sharing Risk Assessment and the need to accommodate elderly prisoners referred to at (a) and (b) above. Thus it came about that the appellant was placed in a cell with a prisoner who smoked. G4S’s case was that this was unfortunate, but could not be avoided given the practical and safety considerations set out above.[25]The prisoners were notified in advance of the move. G4S’s evidence was that they were told that if they had an issue with their cell on arrival, they should report it by the following morning, and an attempt would be made to resolve the issue as soon as possible.[26]There is a dispute on the evidence as to whether the appellant made any complaint prior to 27th March 2012, when it is acknowledged he complained after final lock up for the night.[27]Evidence was filed on behalf of both respondents addressing the issues of proportionality and justification, and in essence asserting that what occurred arose out of operational needs on a temporary basis due to the high turnover of inmates of the particular prison, full capacity, and the need to maintain safety, discipline and good order within the prison. The appellant contested those positions, but before reaching that stage, needed to cross the threshold of engagement and interference with Article 8 and/or Article 14 rights.

The Appellant’s Submissions

[28]Mr Southey QC, for the appellant, submitted, firstly, that the appellant’s 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. There was no suggestion of prison governors or staff having a discretion to change the designation of a cell in these circumstances so as to prevent smoking within it. In failing to provide for discretion of this sort, 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.[29]As to Article 14, there was discrimination as between non-smoking prisoners and their counterparts in the community who should be regarded as being in an analogous position. The appellant was being 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 Authorities

[30]Mr Southey relied on a series of ECtHR decisions. First there was an admissibility decision, Benito v Spain APP 36150/03 [13/11/2006]. The court rejected admissibility as manifestly unfounded. Benito was held in a Spanish prison and complained about exposure to second-hand smoke, not in a cell, but in a television room. The court commented that the exposure of a non-smoker without his consent to second-hand smoke could constitute an interference with Article 8 rights. This appears to have the character of an assumption made for the purposes of proceedings in which the applicant had not expressly invoked Article 8. It would seem that the court was content to proceed on an assumption of potential interference with private life for the purposes of its decision, albeit that there was no analysis at all of why Article 8(1) was engaged.[31]The court’s conclusion, however, in holding the application inadmissible, was that there was no uniform practice or common view amongst member states concerning smoking and the regulation of the right to smoke in prisons.[32]In the later case of Hristov v Bulgaria APP 36244/02 [16/10/2008], another application under Article 8 was held inadmissible. Hristov complained of having to share a cell with prisoners who smoked. The application was refused on the basis that the Bulgarian authorities had taken steps to accede to Hristov’s request to be placed in a non-smoking cell. The court referred in passing to Benito, but made no finding that Article 8 was engaged. It is therefore hard to see how this case advances matters. Those are the only two ECtHR cases cited which directly involve Article 8 issues. It does not seem to me that either of them assists the appellant’s case.[33]The Secretary of State in written submissions also referred us to Botti v Italy APP 77360/01 [02/12/04]. This was an Article 8 case relating to the lack of an enforceable smoking ban in a non-prison context. The court noted in finding the complaint inadmissible that a non-smoker’s interests could not be taken in isolation from the interests of smokers. Again, this case does not advance the cause of the appellant.[34]However, Mr Southey sought to advance matters by analogy with Fadeyeva v Russia [2007] 45 EHRR 10. That was a case involving environmental pollution resulting from toxic emissions from an industrial plant. The 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. This was a case where 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.[35]It is to be noted at once that the level of harm involved in Fadeyeva is in a wholly different league from exposure to passive smoking over a period of seven days. In the instant case, daytime cell exposure would be of the order of about three hours in two separate periods, with night time exposure after lock up, obviously at a lesser level of smoking, for a period of around twelve hours.[36]Whilst Mr Southey submitted that there could be no safe level of exposure to smoke based on evidence filed with this court, the court in Fadeyeva made certain observations as to general principles relating to the nature and extent of interference with an applicant’s Article 8 rights. “69. The Court further points out that the adverse effects of environmental pollution must attain a certain minimum level if they are to fall within the scope of Art.8. The assessment of that minimum is relative and depends on all the circumstances of the case such as the intensity and duration of the nuisance, its physical or mental effects. The general environmental context should also be taken into account. There would be no arguable claim under Art.8 if the detriment complained of was negligible in comparison to the environmental hazards inherent to life in every modern city. 70. Thus, in order to fall under Art.8, complaints relating to environmental nuisances have to show, first, that there was an actual interference with the applicant’s private sphere, and, secondly that a level of severity was attained.”[37]Those observations seem to me to be important. Given the weakness of his position in the light of Benito and Hristov, Mr Southey took refuge by analogy with this environmental pollution decision. However, it seems to me that the passages just cited militate against rather than support his submissions. On the facts of Fadeyeva, Article 8 was clearly engaged and involved. However, I do not consider that there is anything which enables it to be said that, in the circumstances of our case, a sufficient level of severity was attained so as to constitute interference with this appellant’s rights.[38]Mr Southey also referred us to some Article 3 decisions. In Kalashnikov v Russia [2003] 36 EHRR 34, the court found a violation of Article 3 in circumstances of lengthy incarceration in wholly unsatisfactory conditions, resulting in the contraction of diseases and infections, and other significant physical and mental symptoms. At paragraph 95 the court observed that there was “an inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment”. It said that measures depriving a person of his liberty may often involve such an element, and that there was an unavoidable level of suffering inherent in detention. Whilst the state undoubtedly has obligations to ensure that a prisoner’s health and wellbeing are adequately secured, regard must be had to the practical demands of imprisonment.[39]In Raninen v Finland [1998] 26 EHRR 563, an Article 3 case, the court observed that whilst the concept of private life within Article 8(1) is a broad one and not susceptible to exhaustive definition, it may, depending on the circumstances, cover the moral and physical integrity of the person. There may be circumstances in which Article 8 could be regarded as affording a protection in relation to conditions during detention which do not attain the level of severity required by Article 3.[40]In Elefteriadis, APP 38427/05 [15/01/2011], a violation of Article 3 was found where a prisoner known to have lung disease was detained in a cell with smokers over a significant period of time, some nine months. The prisoner’s subsequent transfer to a cell with a non-smoker was not due to objective criteria laid down in legislation, but merely to a combination of circumstances, and there was no indication that the applicant’s experience would not be repeated in the future.[41]Mr Southey relied on this decision because the court held that in the circumstances it was not reasonable to place the onus on the applicant to provide physical evidence of damage caused before entertaining a claim for compensation. It does not seem to me that this case materially assists him. Firstly, the factual background is very different. Secondly, there are in the present case objective criteria relating to the allocation of cells for non-smokers, and thirdly, the question of compensation could only arise if the threshold for Article 8 was crossed and any interference could not be justified on the grounds of proportionality.[42]In Florea v Romania APP 37186/03 [14/09/2010], a violation of Article 3 was found in relation to conditions of incarceration over a three year period. Smoking was merely one factor among many in a case which involved confinement to a cell for 23 hours a day in deplorable hygiene conditions. Some four years on from Benito the court again commented on the absence of a consensus amongst member states in relation to passive smoking in prisons. The court also noted the decision in Hristov, but said nothing to call into question either decision, for example by reference to the fact that time had passed and attitudes to passive smoking might have changed so that any exposure to second-hand tobacco smoke constituted an interference with Article 8 rights.[43]In relation to Article 14 Mr Southey rightly submitted that it was open for consideration whether or not interference with Article 8 was found. In this context he drew attention to Shelley v United Kingdom APP 23800/06 [14/01/2008]. The case concerned the lack of a needle exchange programme in prison, and comparison was made with the position of those in society in general, in the context of the state’s need to respect the obligation to safeguard the health of prisoners. Whilst an Article 8 complaint failed, the court was prepared to treat the complaint as falling “in the wide sense” within the ambit of Article 8 and thus went on to consider Article 14.[44]At page 13 the court said this:
“Whether or not the applicant prisoner can claim to be in analogous position will therefore depend on the subject matter of his complaint. In this case the applicant complains of different standards of healthcare being applied in prison. The court would observe that the European Prison Rules, the Committee for the Prevention of Torture (CPT) and the Domestic Prison Regulations themselves provide that the healthcare in prisons should be the same as that in the community. For the purposes of the present application, therefore the court is prepared to assume that prisoners can claim to be on the same footing as the community as regards the provision of healthcare…”
[45]Although the court accepted that being a prisoner was a “status” and that the complaint fell within the ambit of Article 8 taken together with Article 14, and even though the court assumed that the position of the prisoner was analogous to those in society in general, the court rejected the complaint in terms of the particularly wide margin of appreciation applying in the area of preventive measures in which considerations of priorities, resources and social policies come into play.[46]I am not persuaded that this decision assists the appellant. Firstly, because the subject matter of the complaint is one in which the European Court has pointed to the absence of consensus existing amongst member states in relation to passive smoking save in cases where the facts are considerably more extreme. Secondly, although the court in Shelley was prepared to make an assumption about the analogous position of prisoners and the general public, in the light of the evidence that 80% of those in custody are smokers, I am not persuaded that the two situations are analogous.

Conclusions

[47]Having heard Mr Southey’s submissions we did not need to call upon counsel for the first or second respondents, although we had read their skeleton arguments. Although the Secretary of State for Health had been joined as an Interested Party, he neither made written submissions, nor was he represented before the court.[48]Having reviewed the authorities I do not consider that the decision of Mostyn J refusing permission was wrong. Although the ECtHR acknowledges the potential for exposure to second-hand smoke to engage Article 8 rights, that question is not to be viewed in a vacuum, but is 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. Accordingly, I agree with the decision of Mostyn J in relation to Article 8.[49]I reach a similar conclusion in relation to Article 14, which was not expressly dealt with by Mostyn J. The decision in Shelley provides only the most tenuous support for the appellant. It is insufficient to provide a tenable argument in relation to Article 14.[50]It is unnecessary to go on to consider questions pertaining to proportionality and justification, since they do not arise. That aspect of the matter was not in any event fully argued before the court in the light of our primary conclusion as to the non-engagement of Articles 8 and/or 14. I will confine myself to saying that I disagree with Mostyn J’s view that it would be improper for him to have considered such matters on the basis that the decision would be a political one and that there was a review under way. That said, it seemed to me, on initial impression at least, that there were formidable obstacles in the path of the appellant in relation to this aspect of the matter.[51]In the circumstances, I would dismiss this appeal.[52]I agree.[53]I agree.

ORDER

[1]The Appellant’s claim for judicial review is dismissed.[2]Permission to appeal be refused.[3]The Appellant to pay the Respondents’ reasonable costs to be assessed if not agreed subject to section 11 of the Access to Justice Act 1999.[4]There be assessment of the Appellant’s publicly funded costs.

Cited in 1 later judgment