Foster, R (on the application of) v HMP Highdown [2010] EWHC 2224 (Admin)

Case No CO/4648/2008

[2010] EWHC 2224 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Thursday, 22 July 2010

Strand

London WC2A 2LL

B e f o r e:

MR JUSTICE KENNETH PARKER

Between

THE QUEEN ON THE APPLICATION OF FOSTERClaimant

Between

HMP HIGHDOWNDefendant

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Mr P Rule (Instructed By Wilkins Solicitors) Appeared for Claimant

Ms K Steyn (Instructed By The Treasury Solicitor) Appeared for Defendant

J U D G M E N T

[1]MR JUSTICE KENNETH PARKER: This is an application for judicial review brought by Jack Richard Foster against the Governor of HMP Highdown, the first defendant, and the Secretary of State for Justice, the second defendant. The claimant challenges the decision of Paula Tomlinson, the Deputy Head of Residence and a Residential Governor at HMP Highdown, made on 14 February 2008 following an adjudication at which the claimant pleaded guilty to being abusive towards an officer, to impose the following punishments: 7 days' loss of tobacco, 7 days' loss of 80 per cent of earnings, 14 days' loss of canteen privileges, and 7 days' loss of association privileges. The focus of the challenge is the 7 days' loss of tobacco. There is a further challenge to the alleged failure of the Secretary of State to issue appropriate guidance in respect of the punishment regime insofar as it may involve the withdrawal of tobacco.

[2]The factual background in brief is as follows. The claimant entered HMP Highdown on 9 October 2007, having been sentenced some time earlier to detention in a Young Offender Institution for public protection under section 225(3) of the Criminal Justice Act 2003. The Crown Court Judge had imposed a sentence of imprisonment for public protection having regard to the risk that the claimant posed. He set a minimum term under the legislation for a very serious offence of rape of 4 years' imprisonment. In the pre-sentence report prepared for the sentencing hearing it was observed that the claimant had pleaded not guilty to the offence, had put the victim through the trauma of giving evidence, and had showed no evidence of remorse or contrition following his conviction.

[3]Prior to 14 February 2008 the claimant while in detention had been found guilty of disciplinary offences at a total of 47 adjudications. Seven of these adjudications had taken place during the short period of about 4 months that the claimant had by then been in HMP Highdown, the remaining 40 adjudications having taken place at other establishments.

[4]On 6 February 2008 the claimant was charged with a disciplinary offence of causing threatening, abusive or insulting words or behaviour. It is notable that the terms of this particular charge are the same whether a young person is spending time in detention at a Young Offender Institution or whether an adult, someone over 21, is in custody in prison. The charge is in exactly the same terms, as one would expect it to be.

[5]The adjudication hearing was first convened on 7 February 2008. On that occasion the claimant did not plead to the offence and, insofar as the records show, he indicated a desire to have legal assistance. Miss Tomlinson, the Residential Governor at HMP Highdown who heard this adjudication, therefore adjourned the hearing for 7 days to give the claimant an opportunity to seek advice. As far as one can see from the evidence, the claimant did not take up the opportunity that was accorded to him. What happened then, apparently, was that at the re-convened hearing on 14 February, the claimant said that he did not want to have legal representation but at that hearing he indicated that he wished to have legal assistance. However, the Deputy Governor took the decision that no further adjournment would be permitted in circumstances where the claimant had already had an earlier opportunity to obtain legal assistance that he had not pursued and where at the hearing itself there did not appear to be a pressing need, if one examined the matter objectively, for either legal assistance or representation. Miss Tomlinson, no doubt out of an abundance of caution having regard to what had happened, did treat the claimant as if he had asked for legal representation and then she carefully analysed the factors in question, namely the history of the matter, the nature of the charge, whether a further adjournment would be necessary, and whether or not the matter raised any important questions of law. She concluded, in the exercise of her judgment, that no further adjournment should be given.

[6]I must say, for my part, that it seems to me that all facilities had been offered to the claimant and that the only sensible course in the circumstances was the one adopted by Miss Tomlinson. I refer to this matter only because the claimant now seeks to extract some advantage from the fact that he had no legal assistance at the hearing. It is quite clear from this background that that was a situation that he had brought about himself. Therefore, the extent to which it can be deployed as a feature in this case is, in my judgment, extremely limited.

[7]At the adjudication hearing on 14 February 2008, the claimant pleaded guilty to the disciplinary offence of abusing an officer. I shall not recite the terms of the language that he used, but the evidence demonstrates that it was indeed extremely abusive and insulting language. Miss Tomlinson noted, before she came to impose any punishment, that the offence was classed as a major offence. That was a correct analysis according to the categorisation applicable in this institution. She also observed that there was a strong history of offending; I would say that that was put in the most modest terms given the previous history of this claimant; and that there were two accounts of similar offences on the same day; and that his behaviour on the HB (House Blocks) had been appalling. She also noted that the claimant showed neither remorse for, nor an intention to remedy, this pattern of behaviour, a propensity that the learned trial judge had noticed when he had sentenced him for the index offence, as I have already described.

[8]Miss Tomlinson then determined that the punishment for this offence should be 7 days' loss of 80 per cent of earnings, 14 days' loss of canteen privileges, 7 days' loss of tobacco, and, subject to a one month suspension, 7 days' loss of association privileges. It is notable that, at this hearing, the claimant, although again he had the opportunity to do so, did not raise any potential medical problems arising from the loss of access to tobacco. He drew no attention to any alleged personal circumstances that would make the imposition of this penalty significantly more onerous in his case than in the case of any other young person detained at the Young Offender Institution. The claimant, on the evidence, was not subject to ACCT monitoring and there was nothing in his immediate history that would have indicated that he was at special risk.

[9]Mr Rule drew my attention at the hearing to a number of reports that were prepared about this claimant at various points in his history, and drew my attention in particular to passages that showed that this claimant had had a disturbed background, that he suffered from certain emotional difficulties, and that he had self-harmed and had made suicide gestures in the past. Nonetheless, the most recent and, in my judgment, relevant, report is the psychiatric report that was prepared by Dr Johnson, the specialist registrar in forensic psychiatry, for the purposes of the sentencing for the index offence. Under mental health examination, the registrar recorded that the claimant did not complain at that time of any depressive symptoms and did not refer to any current suicidal ideas, though he said he would commit suicide if he was given a long sentence. No doubt, by that stage the claimant realised what he was very likely to be facing in terms of sentence and therefore one has to have regard carefully to the context in which that averment was made. The registrar went on to say, importantly, that, objectively, the claimant did not appear depressed, and there was no evidence of any psychotic symptoms. The claimant denied any perceptional abnormalities; he was fully oriented and cognitively intact. In short, the claimant at that time did not believe there was anything wrong with him as regards his mental health. Therefore, even if there were certain pointers towards the emotional state of this particular claimant, I hold that, on this evidence, there was nothing of sufficient significance that would reasonably have led the Deputy Governor to have treated this claimant in any different way from any other young offender who would have appeared before her on such a disciplinary charge.

[10]Nonetheless, Miss Tomlinson has made it clear in her evidence to this court that she would indeed have responded to any representations made by the claimant about any ill effect on his well-being by reason of the punishment that she had in mind. She indicates that she had an open mind to the extent that she would have responded favourably to any such representations and would have considered seriously suspending the imposition of the tobacco ban, or alternatively making provision for NRT. I should make clear at this stage that within the Young Offender Institution there was a 3 month waiting list for a 10 month program for those who wished to give up smoking altogether. This is understandable given a climate of economic recession where resources are scarce and must be deployed in the public interest towards those in the greatest need and who show the greatest willingness to take appropriate steps to help themselves. Nonetheless, Miss Tomlinson was indicating that, in special circumstances within the disciplinary regime, she was sufficiently flexible to enable a person in relevant circumstances effectively to jump the queue and to get NRT treatment in order to mitigate the effect of a proposed penalty.

[11]It appears that, subsequently, the claimant raised the issue of NRT with nursing staff. However, what he did not do was, firstly, seek to appeal the adjudication. This was a right that he had and this would have enabled him to make representations about the effect of the tobacco ban on him but he chose not to exercise that right. Nor did he, outwith the disciplinary procedure, seek to raise with the relevant prison officers, namely Miss Tomlinson, the question of the impact of the ban on him. She makes clear, again, that, had such representations been made, even at that stage, she would have given consideration to them.

[12]There has been an issue of fact as to the actual duration of the ban. It does seem that, taken in conjunction with the loss of canteen privileges, the 7 day ban would have been somewhat longer in effect. It does appear, although the matter is not entirely clear on the evidence, that it is probable that the claimant already had in his possession some tobacco at the time of the imposition of the ban; that would have been taken from him but, in the normal course, would have been returned after the 7 day period. That tobacco then would have been available to be used after the 7 day ban had expired. Nonetheless, I have to accept that the loss of the canteen privileges would have meant that he could not have stocked up on tobacco as quickly as he would have done if the canteen ban had not additionally been added. However, that, again, is a matter that could have been made the subject of representations, either at the time of the hearing or subsequently. The claimant could have pointed out that the effect of the canteen ban was, in practice, to extend the smoking ban beyond the period contemplated by the ban itself and that some step in mitigation might be appropriate.

[13]In the context of the effect on the claimant of the ban, my attention was drawn to a report by Professor West. I am not going to dwell on that report at length. It seems to me that the up-shot is that the effect is precisely what would have been expected in these circumstances, namely a case where a young person has been taking cigarettes for a very substantial period and then has that facility withdrawn for a short period. There were undoubtedly withdrawal symptoms in this case, and the claimant, as could be expected, did suffer some degree of distress. However, I point out again that it was open to the claimant to make representations at the time or subsequently in the light of such distress as he was claiming that he was suffering.

[14]I now deal with each of the individual grounds of challenge. The first relates to the validity of the penalty. The first point raised is that the adjudication document itself on its face makes plain that the claimant was charged under the wrong rule; he was charged under Prison Rule 51.20 and it is common ground that that was incorrect. He should have been charged under Rule 55.2, applicable to Young Offender Institutions. This ground emerged very late in the day, but I am prepared to accept Mr Rule's submission that it was made as soon as reasonably practicable in the light of the disclosure made by the defendant. Therefore, I am prepared to deal with the particular point.

[15]The short answer to this point is as follows. The Prison Rule is in precisely the same terms as the Rule applicable to Young Offender Institutions. Therefore, in my judgment, it made no difference whatsoever to the outcome of these proceedings, and no prejudice whatever was suffered by the claimant. It was not said, for example, that by reason of reference to the wrong rule an inappropriate penalty was imposed. So far as this point is concerned, the penalty imposed was that falling squarely within the ambit of the Young Offender Institution rules. It remains the case, however, that there was the most highly technical breach of the rules, and it seems to me that some declaratory relief is due in respect of that highly technical breach. However, in the particular circumstances, where the rules are exactly the same and no prejudice whatsoever has been suffered by this claimant, in the exercise of my discretion I would hold that it would serve no useful purpose whatsoever and would be contrary to justice to quash the adjudication by reason of that fact alone. Therefore, in the exercise of my discretion, I would refuse to grant that form of relief.

[16]The more substantive point raised is that the punishment, the withdrawal of tobacco, was not one open under the rules and regulations. HMP Highdown is a dual designated prison. The claimant was located, at the time of the adjudication, in a part of HMP Highdown which had been designated as a Young Offender Institution. Accordingly, the Young Offender Institution Rules 2000 SI2003371 YOI Rules applied to the claimant. Rule 55.22 of the YOI Rules provides:

"An inmate is guilty of an offence against discipline if he uses threatening abusive or insulting words or behaviour"

. Then, under rule 60 of the YOI Rules: "If the Governor finds an inmate guilty of an offence against discipline, the Governor may, subject to paragraph 3 of rule 75, impose one or more of the following punishments: (b) Forfeiture, for a period not exceeding 21 days, of the privileges under Rule 6".

[17]In short, Mr Rule submits that smoking tobacco is not a privilege under Rule 6. It is necessary therefore to return to Rule 21.2 of the YOI Rules which provides:

"No inmate shall be allowed to smoke or to have any tobacco, except in accordance with any directions of the Secretary of State"

. This provision is in fact in more draconian terms than the Rule to which my attention was directed in respect of prisons. On the face of it, this rule is saying that there shall be no smoking unless the Secretary of State directs to the contrary. That, in my judgment, is a strong indicator that there is no right to smoke in Young Offender Institutions. It is a privilege that can be conferred only under regulations. Rule 6 of the YOI Rules provides, firstly: "There shall be established in every Young Offender Institution systems of privileges approved by the Secretary of State and appropriate to the classes of inmates thereof and their ages, characters and circumstances, which shall include arrangements under which money earned by inmates may be spent by them within the Young Offender Institution. Nothing in this rule should be taken to confer on an inmate any entitlement to any privilege or effect any provision in these rules, other than this rule as a result of which any privilege may be forfeited or otherwise lost, or an inmate deprived of association with other inmates".

[18]Pursuant to those provisions, HMP Highdown does have an incentive and earned privileges scheme (the IEPS), and tobacco is specifically listed as a privilege in schedule 3. It seems to me, therefore, that there is clear power to include tobacco as a privilege and, pursuant to rule 60, to make its withdrawal part of the punishment regime.

[19]Mr Rule drew attention to the PSI but, in my judgment, this does not assist him. The PSI treats young offenders in the same way as prisoners. It draws no distinction for present purposes between them, and it would simply be illogical to rely upon the PSI for a contention that it is not a privilege in respect of young offenders but is a privilege in relation to adults. Furthermore, it appears to me that the scheme that would putatively arise from the construction that Mr Rule seeks to place upon these rules would be wholly irrational. It would create a situation in which, up to the age of 18, smoking would be absolutely prohibited as contrary to the general law; after the age of 21 it would undoubtedly be a privilege, but between the ages of 18 to 21 smoking cigarettes would be a right in a Young Offender Institution. This would appear to me to be a result wholly without rationale and completely illogical, and I decline to give the rules what, in my opinion, would be an extremely contrived interpretation, to reach such an absurd result.

[20]I then turn to the second ground, namely an alleged unlawful failure to follow guidance. It is said in the grounds that the Governor failed to follow the applicable guidance on the requirement to provide NRT. The claimant relied on three sets of guidance. These did not in fact feature prominently in Mr Rule's oral submissions before me and therefore I am going to treat the matter somewhat briefly. First, the claimant relies on Prison Services Order 2000 dealing with adjudications. However, PS2000, in so far as it is relevant, refers only to the circumstances that must be taken into account when adjudications are made, and that care must be taken to ensure that any penalties are proportionate. It is notable in this context that the penalty, of course, did not preclude NRT. That was an option that remained available and could indeed have been made available if appropriate steps had been taken as I indicated earlier. Secondly, the claimant refers to Prison Services Order 3200, Health Promotion. However, this deals simply with the general position and makes comparison with the National Health Service and, in my judgment, is of no direct assistance on the issues here. Thirdly, the claimant relied upon the Prison Service instruction document entitled "Smoke Free Legislation". The high point of this document is that PS109/2007 says in the introductory paragraph that prisons will want to provide, as far as possible, assistance in smoking cessation to prisoners, and that consideration should be given to offering NRT on reception as a matter of policy to juveniles who smoke before coming into prison, and further adds at paragraph 7 that those statement address general arrangements regarding smoking cessation support for new prisoners. The addendum goes on to say:

"Options for consideration in local protocols of prisoners requiring unrestricted observation ..."

Then it states at paragraph 4 that one such option is that, where access to tobacco must be denied for a period of time, some form of NRT must be supplied. This paragraph, in its terms, refers to an option for consideration. It is not imposing a mandatory regime and, furthermore, it is concerned with prisoners requiring unrestricted observation and the claimant does not fall into that category.

[21]Paragraph 9 of Annex 2 of that document states that, in appropriate cases, it may be good practice that a prisoner should be offered NRT when in nicotine withdrawal. It then refers to certain situations which are regarded as appropriate. However, none of those include disciplinary measures. In any event, it is referring to good practice rather than a mandatory legal requirement and I, again, refer to the flexibility that is, on the evidence, available within the disciplinary procedures in this case in any event.

[22]I now turn to the next ground of challenge. This is that the imposition of the particular penalty was irrational. In my judgment this has no substance whatsoever. It is quite plain from the recital of the facts that I have already given that this claimant had the most serious antecedents in terms of disciplinary adjudications, that the particular offence in question was of a serious nature, and that some effective deterrent had to be imposed. It seems to me that Miss Tomlinson took into account all relevant factors and none of the penalties that were imposed could be said to be either irrational or disproportionate. I again come back to the feature that, according to her evidence, she would nonetheless have taken into account any individual representations that might be made. In this context, that gives some extra comfort but, in my judgment, it was not strictly necessary. Looking at this matter in an entirely objective manner and putting that consideration aside, it appears to me that there are no grounds whatsoever for saying that this particular penalty was disproportionate.

[23]It has been urged in this context that there was some irrationality in the failure actively to consider the provision of NRT. In my judgment that is mistaken. There was no duty upon the Governor actively to consider the provision of NRT. The prohibition was for a relatively short period of 7 days and, even taking account of the complication caused by the withdrawal of the canteen facilities, the ban was of a relatively short nature. Therefore, having regard to the very short duration of this penalty and the likely consequences viewed from an objective point of view, there was no legal necessity to consider the provision of NRT. Of course, as I have mentioned on a number of occasions, this is something that the Governor would have considered had her attention been specifically drawn to it. Similarly, it is a matter that could have been raised on appeal, or indeed subsequently to the adjudication, if the claimant had taken appropriate steps.

[24]I now turn to the claims under the ECHR. I start with Article 8, because Article 8 would, on the face of it, appear to be the most relevant, and also because Article 8, in a not dissimilar context, has already been considered authoritatively by the Court of Appeal in N v the Secretary of State for Health, E v the Nottinghamshire Health Care NHS Trust

[2009] EWCA Civ 798

. I will recite the terms of Article 8 for convenience: "8(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There should be no interference by a public authority with the exercise of this right, except such as in accordance with the law and is necessary in a democratic society or in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".

[25]It is said in this case that Article 8 was engaged because the activity of smoking in a Young Offender Institution is an activity falling within the scope of protected private life under Article 8. However, in my judgment, that matter has been definitively determined as a result of N to which I have referred. N concerned a permanent deprival of the privilege of smoking in Rampton Psychiatric Facility. I need not recite the background as to how this came about, for it is sufficient simply to refer to the result of various policies that had been imposed in respect of that institution. The matter came before the Divisional Court first, and then to the Court of Appeal. In the Court of Appeal a key question was whether the permanent deprivation of the privilege of smoking in Rampton did engage Article 8. There was considerable discussion of the nature of Rampton, and whether the nature of Rampton was conclusive in relation to the issue under consideration. The majority of the Court of Appeal, in my judgment, did not find that the nature of the place was by any means conclusive. I shall recite paragraph 49 in full which appears to me to be the crucial passage, in the judgment of Lord Clarke MR: "Since the nature of the place in which the appellant's seek to smoke tells against any right protected by Article 8, those seeking protection are compelled to rely to a greater extent on the importance of the activity they seek freedom to pursue. The less the appellant can rely upon the nature of the place on which the activity is pursued, the more he must rely upon the proximity of the activity to his personal identity or physical and moral integrity. Of course, we accept that every activity a detained patient is free to pursue is all the more precious in a place where so many ordinary activities are precluded, but that does not mean that we must abandoned the concept of private life which previous jurisprudence has sought to explain. Difficult as it is to judge the importance of smoking to the integrity of a person's identity, it is not, in our view, sufficiently close to qualify as an activity meriting the protection of Article 8. It is some distance away from the examples considered in Lord Bingham's speech in Countryside Alliance, and it is certainly not to be equated with the development of a patient's personality as Lord Roger understood that concept at paragraph 107".

[26]That, in my judgment, is clear authority that the activity of smoking is not within Article 8, even in the context where there was a permanent ban on such an activity in a closed institution. In this case, far from a permanent prohibition, the prohibition was imposed in the context of a disciplinary regime where the actual sentence was simply a deprival of tobacco for a short period of 7 days. Even if that was extended, as I say, by reference to the canteen facilities, it would not, in my judgment, be logical to treat that penalty, in the context of a disciplinary regime of that duration, as engaging Article 8 when the complete prohibition, permanently, in the closed institution in Rampton, did not engage that right.

[27]Mr Rule sought to distinguish the case of N on various grounds but, in my judgment, none of them bears scrutiny. He suggested that in Rampton the patients lacked capacity. But there is simply no evidence to that effect, and in any event, it seems to me that that aspect had no bearing on the relevant legal issue before the Court of Appeal. He also referred to alleged health benefits that might have been available in Rampton. However, that is a factor that goes to justification rather than to the threshold question, namely whether Article 8 is engaged at all. Even if I focus for a moment on the nature of the institutions, I see no objective difference between Rampton and a Young Offender Institution so far as this relevant issue is concerned, namely the withdrawal of smoking. In my judgment, there are no objective relevant factors that would justify a different result so far as the engagement of Article 8 is concerned, whether one is concerned with an institution such as Rampton or a Young Offender Institution.

[28]Even if I were to conclude that Article 8 was engaged in this case, I would, nonetheless, also conclude that there was justification for the interference with private life. The imposition of a ban of this nature for the duration in question appears to be a justifiable measure under Article 8 for the reasons that I have already stated. The range of penalties in prison must accommodate the conditions in prison and it is notorious that many prisoners and many of those confined in Young Offender Institutions do smoke and that the deprival of that privilege for a limited period of time may turn out to be an effective punishment. It therefore seems to me justifiable to have a disciplinary system that includes the withdrawal of that privilege within the armoury of the prison authorities or those who are running Young Offender Institutions. I stress again, in relation to justification, that, in this case, the Prison Governor did stand ready to modify the application of the penalty having regard to individual circumstances. Therefore, on this evidence, it is plain that the system is sufficiently flexible to respond to individual circumstances. I therefore reject the claim under Article 8.

[29]The next article relied upon is Article 3, which provides that no one should be subject to torture or to inhuman or degrading treatment or punishment. In the present context, Ms Karen Steyn, who appears on behalf of the defendant, drew my attention to Blake J's observations in R v the Secretary of State for Justice and the Governor of HMP Belmarsh

[2008] EWHC 3298

Admin. He said, referring to the absolute prohibition imposed by Article 3:

"The quid pro quo for that absolute prohibition is that it sets a high standard, and a minimum level of severity has to be addressed. Prison conditions maintained over a lengthy period of time that have some of the elements of this case, segregation, strip search, denial of or restricted access to visitors and such like, may go into a mix when viewed with the benefit of hindsight, but the total picture today, intrusive and unpleasant for the claimant as I recognise it must be, in my judgment does not meet, within some distance, the high standards required by Article 3"

. Ms Steyn also referred me to Pretty v the United Kingdom

[2002] 35 EHRR 1

where, at paragraph 52 the European Court of Human Rights described the standard for treatment engaging Article 3.

[30]In this application Mr Rule fairly concedes that Article 3 would not ordinarily be engaged by the withdrawal of tobacco, but he relies upon the personal circumstances of this claimant for the engagement of Article 3. In my judgment, the concession is plainly correct. It would be absurd if the Court of Appeal in N had said that Article 8 was not engaged in respect of a permanent ban on smoking, yet Article 3 could be engaged in reference to short term disciplinary sanctions. However, earlier in this judgment, I dealt with the personal circumstances of the claimant. Again, I reiterate that there were indications that he had had, and may have continued to suffer, particular emotional difficulties, may have self-harmed, and may have engaged in suicide gestures, as the reports indicate. Nonetheless, it seems to me that the imposition of this very short prohibition on smoking did not come within Article 3, even taking into account those personal factors. Again, I state that it was fully open to the claimant to raise those individual circumstances on a number of occasions and he did not do so. Therefore, I also reject the claim under Article 3.

[31]That leaves the ground that derives from Article 14, where unlawful discrimination is raised. The short answer to this point is that, because neither Article 3 nor Article 8 are engaged in this case, then the application of Article 14 does not arise. A tenuous link to the substantive article is not sufficient, see M v the Secretary of State for Works and Pensions [2006] 2 AC per Lord Bingham at [4] and by Lord Walker at [56], [57], [60] and [87].

[32]However, even if those articles were engaged, or this particular activity fell within the ambit of those articles, I do not accept that there was any relevant difference in treatment. The law as to the application of Article 14 is not entirely clear. The latest statement by the European Court of Human Rights on the matter was given very recently, on 13 July 2010, in the case of Clift v the UK, application number 720507. I am prepared to give the most generous interpretation of that judgment for the benefit of the claimant and to consider various alleged discriminations. Firstly, it could be alleged that there is some discrimination between smokers and non-smokers to the extent that penalties on smokers that might be otherwise considered comparable would not have the unintended consequences that those who are addicted to tobacco would suffer. This, in my judgment, is not a sufficient differentiating factor having regard, as I have already stated, to the very short term duration of the penalty and also having regard to the in-built flexibility in the system to deal with particularly difficult circumstances. Another possible comparison would be between smokers who had access to NRT as a result of established programs in prison or the Young Offender Institutions and those who, subject to disciplinary offences, might not have such access. Again, in my judgment, these are not relevant similar instances because the circumstances are different. As regards those in the program, these are prisoners or young offenders who have demonstrated a willingness to give up smoking and, therefore, have access to scarce resources in order to receive NRT as part of a planned program to ween them off smoking and to avoid the ill-health consequences that are now so well established. That, in my judgment, is a different situation entirely to those who receive a very short term penalty for infringement of prison or Young Offender Institution rules, particularly taking account of the flexibility to which I have referred.

[33]Therefore, even taking a generous view of the ratio in Clift, and even proceeding upon what I regard as a false premise, namely that Article 3 and Article 8 are engaged, I would hold that there is no relevant discrimination in this case between the categories identified.

[34]That leaves the final ground of challenge, namely an allegation that the Secretary of State failed to issue appropriate guidance. Mr Rule has referred to the power in section 47(1) of the Prison Act 1952 to issue rules. The section provides that the Secretary of State may make rules for the regulation and management of prisons, remand centres, Young Offender Institutions, or secure training centres respectively, and for the classification of treatment, employment, discipline and control of persons required to be detained therein. It is beyond dispute that the Secretary of State has indeed made rules relating to discipline and has also issued guidance documents in relation to disciplinary matters. However, Mr Rule goes further and submits that the Secretary of State, under that power, was obliged to issue rules in relation to the question as to the circumstances in which, and the conditions subject to which, tobacco could be withdrawn as a disciplinary punishment.

[35]In my judgment, this ground is misconceived. It is plain that section 47(1) confers the broadest of discretions upon the Secretary of State, and it is for the Secretary of State to decide precisely what rules should be established. If he has established rules for discipline, it does not follow from that broad obligation that specific sub-headings of rules or guidance then have to be imposed. I accept that if, for example, no rules were imposed in relation to discipline or control, to take two of the matters mentioned, then it is easy to see that Parliament could not have contemplated that the Secretary of State would use his rule making power in such a way as to leave such a broad lacuna. However, that does not mean that Parliament contemplated that the Secretary of State would descend into particular detail in relation to discipline and to go as far as requiring a specific guidance in respect of the matter in question in this case.

[36]It seems to me that this is a matter that can be left for decision at the level of the prison or Young Offender Institution, having regard to all the material that is now available in those institutions and that is manifest in the evidence. It is plain that those responsible for the management of prisons and Young Offender Institutions know the nature of this problem and have the means in their power to design their own programs to deal with it. As I have said, the institution here already has a program dealing with those who wish, from a long term point of view, to undergo NRT, and it is also clear from the evidence given by the Governor that she is generally sensitive to the issues raised by the deprival of tobacco, even for a relatively short duration. It was precisely on that footing that she responded by saying that the system was flexible and could address specific circumstances if they were brought to her attention.

[37]Therefore, it does not seem to me that there has been any failure by the Secretary of State of the kind alleged, and therefore I am dismissing all grounds for judicial review and I dismiss the claim in its entirety.

[38]MS STEYN: My Lord, I am grateful. I would just seek an order for costs on the usual legal aid basis. I should just draw your attention to the fact there was in fact an order which is at A50, given at the time of permission, which stated that the costs of this claim were to be subject to detailed assessment if not agreed and paid by the defendant to the claimant's solicitors. Slightly odd that it was given at that stage against the defendants. I would seek to have that set aside as well.

[39]MR JUSTICE KENNETH PARKER: Yes. There is the question of the declaration, I have gone that far so some provision will have to be made, but my view at the moment is that, subject to that, the claim has failed, and that was such a technical matter that I would not be minded to deprive you of any costs at all in respect of the claim, subject to any submissions.

[40]MR RULE: Well, my Lord, the claimant obviously has costs protection under the Access to Justice Act, I am not aware of the basis on which the courts are asked to make an order in those circumstances. Obviously, a serving prisoner subject to continuing detention --

[41]MR JUSTICE KENNETH PARKER: Well, what happens nowadays is that the court makes the order and then section 11 of the Access to Justice Act, CPR 44.21, I think it is, and CPR 20 to 23 come into play, and the order can only be enforced according to those provisions. We do not spell all that out otherwise we would be going on for two pages in the order.

[42]MR RULE: My Lord, indeed. There needs to be some consideration as to the means of the claimant --

MR JUSTICE KENNETH PARKER: Well, that is all dealt with by the CPR and the CP.

[44]MR RULE: My Lord, very well. My Lord, I invite an order for detailed assessment of the claimant's publicly funded costs.

MR JUSTICE KENNETH PARKER: Yes, but I mean your client might win the lottery next week.

[46]MR RULE: Well, my Lord, I was not on notice that an application for costs was to be made, or indeed received a schedule of costs. It is a day's hearing, obviously the rules require that I ought to have been served, in those instances, a schedule of costs.

[47]MR JUSTICE KENNETH PARKER: Yes, I have had this quite recently because, in not similar circumstances, the same order was made, but, rather imprudently, the body that was supporting the claimant paid the costs to the public authority and that should not have happened. It only happened because that party did not look at the rules, because otherwise they could have said to the public authority, this order has to be enforced, if at all, under the rules, and you cannot simply write to the claimant or us asking us to send you a cheque. So, I am sure that the Treasury Solicitor or those instructing on the other side are only too familiar with this whole terrain, and your client is not likely to receive a letter saying please pay.

[48]MR RULE: My Lord, very well. May I ask for permission to put in written submissions about the costs order if it transpires in the next 14 days that I ought to do so? I say that because I am not on notice and prepared for it, and I have in the past had the same application refused for reasons that I will look into.

[49]MR JUSTICE KENNETH PARKER: Right. That is my understanding of the current practice, that everyone is taken to understand the position under CPR etc, it is only going to be enforceable according to those provisions.

[50]MR RULE: My Lord, very well. And, my Lord, in relation to the question of the declaration, I do not know if my Lord has any terms in mind?

[51]MR JUSTICE KENNETH PARKER: Well, normally you would be able to agree it among yourselves. I think you will be able to agree terms.

[52]MS STEYN: Certainly. Often the judgment would be seen as sufficiently declaratory. It would be my submission that, in this case, it is sufficient but --

MR JUSTICE KENNETH PARKER: I think it would probably be better in the order.

[54]MS STEYN: Certainly.

[55]MR JUSTICE KENNETH PARKER: Thank you very much indeed for your assistance. Sorry it has taken so long.