R (on the application of Black) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Singh |
| Judgment Date | 05 March 2015 |
| Neutral Citation | [2015] EWHC 528 (Admin) |
| Docket Number | Case No: CO/1258/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 March 2015 |
[2015] EWHC 528 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Singh
Case No: CO/1258/2014
Ms Shaheen Rahman (instructed by Leigh Day Solicitors) for the Claimant
Mr Jonathan Hall QC (instructed by Treasury Solicitor) for the Defendant
Hearing date: 11 February 2015
Introduction
This is a claim for judicial review brought by a serving prisoner against the Secretary of State for Justice, who has responsibility for prisons. Permission was granted after an oral hearing by Foskett J on 1 July 2014.
The main issue in this case is whether the Health Act 2006, which bans smoking in enclosed public places and workplaces, applies to all prisons, in particular state prisons, that is those prisons for which the Crown is responsible.
Factual background
The Claimant is serving a sentence of indeterminate detention for public protection (IPP). I am informed that in 2007 he was convicted of sexual assault and outraging public decency. At that time it was possible for an IPP sentence to be imposed in cases such as this. The IPP regime, which was first introduced by Parliament in the Criminal Justice Act 2003, was later amended by the Criminal Justice and Immigration Act 2008 and then abolished by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. However, this Claimant continues to be in prison under the IPP that was imposed on him. His tariff expired after 203 days but he cannot be released on licence until the Parole Board is satisfied that he is no longer a danger to the public.
Since 2009 he has been at HMP Wymott. He is a non-smoker and suffers from a range of serious health problems and takes a number of medicines. In particular he has a history of angina, dyspnoea and anterior myocardial infarction, and required surgical coronary intervention in 2009.
The Claimant is concerned about his exposure to second-hand smoke, sometimes also known as secondary tobacco smoke. It is generally estimated that around 80% of prisoners smoke. They are permitted to do so in their own cells.
The Claimant asserts in his witness statement that both staff and prisoners often smoke in areas at HMP Wymott where smoking is formally prohibited, for example on landings and in laundry rooms. The evidence about this is disputed on behalf of the Defendant by the Governor of the prison, Terry Williams. No application was made in this case to cross-examine any of the witnesses and I considered the case, as is usual, on the written evidence alone.
On 29 September 2013, following a number of formal and informal complaints, the Claimant submitted a complaint asking for what has been described in this case as the National Health Service (NHS) Smoke-Free Compliance Line (SFCL) to be put on the prison phone system for all prisoners.
A judicial review pre-action protocol letter was sent on 17 December 2013. As a result the prison agreed to install the SFCL on the Claimant's personal PIN phone account, in late January 2014. However, this did not satisfy the Claimant as it falls short of what he seeks. He wishes the SFCL to be added globally to the phone system for all prisoners, so that calls can be made anonymously and confidentially. A similar system is in place for some telephone numbers such as the ones for the Samaritans and Crimestoppers.
The Claimant submits that, as things stand, it would be easy for another prisoner or prison staff to appreciate from whom a complaint had come. As evidence of the problems that might be faced in practice, he states in his witness statement (at para 23) that on or about 13 January 2014 the prison officer who informed him that the SFCL had been added to his list of phone numbers said: "You can have the grass line put on your account."
A further pre-action protocol letter was sent on 27 January 2014 by solicitors acting on behalf of the Claimant. In his reply of 10 February 2014 the Secretary of State said that he considered that the Claimant's anxieties were "exaggerated", that the Claimant had achieved what he had set out to and that it was unnecessary and disproportionate to launch judicial review proceedings.
Material legislation
The Health Act 2006, which came into force on 1 July 2007, introduced a scheme to ensure that enclosed public places and workplaces in England were smoke-free. I will return to consider the background to that Act later.
Part 1 of Chapter 1 of the Act makes provision for the prohibition of smoking in certain premises, places and vehicles. By section 2(1), premises are "smoke-free" if they are open to the public and used as a place of work by more than one person. By section 2(7), premises are open to the public if the public or a section of the public has access to them, whether by invitation or not, and whether on payment or not.
By section 3(1), regulations may be made for specified descriptions of premises, or specified areas within specified descriptions of premises, not to be smoke-free despite section 2. Those regulations are the Smoke-Free (Exemptions and Vehicles) Regulations 2007 (SI 2007 No.765).
By Regulation 5, a designated room that is used as accommodation for persons aged 18 years or over in the premises specified in Regulation 5(2) is not smoke-free. The premises so specified include prisons, as well as care homes and hospices: see sub-paragraph (c).
By section 7(2) of the Act an offence is created of smoking in a smoke-free place. By section 7(4) it is a defence for a person charged with an offence under subsection (2) that he did not know or could not reasonably have been expected to know that it was a smoke-free place. By section 7(6) an offence under that section is liable on summary conviction to a fine not exceeding a level on the standard scale specified in the Regulations.
Section 8(1) of the Act imposes a duty on any person who controls or is concerned in the management of smoke-free premises to cause a person smoking there to stop smoking. Section 8(4) creates a criminal offence for failure to comply with that duty, subject to a statutory defence under subsection (5). That subsection provides that:
"It is a defence for a person charged with an offence under subsection (4) to show –
(a) that he took reasonable steps to cause the person in question to stop smoking;
(b) that he did not know, and could not reasonably have been expected to know, that the person in question was smoking; or
(c) that on other grounds it was reasonable for him not to comply with the duty."
By section 10, and the Smoke-Free (Premises and Enforcement) Regulations 2006 (SI 2006 No.3368), the function of enforcement of the provisions of the Act is given to local authorities. Schedule 2 to the Act provides that an authorised officer of the enforcement authority has the right to enter premises which he considers it is necessary for him to enter for the purpose of the proper exercise of his functions by virtue of Chapter 1 of Part 1 of the Act on production of written authority.
Grounds of challenge
Although the grounds of challenge were formulated somewhat differently in the original claim for judicial review, three main submissions were made on the Claimant's behalf at the hearing before me.
First, he submits that Chapter 1 of Part 1 of the Health Act 2006 applies to prisons and in particular to prisons for which the Crown is responsible. In this context he submits that Chapter 1 binds the Crown.
Secondly, he submits that Articles 8 and 14 of the Convention rights require that he be allowed access to the SFCL and succeeding compliance line without the imposition of conditions on that access, in other words that calls to the line ought to be confidential and anonymous.
Thirdly, he submits that the Secretary of State's failure to enforce Rules 20(1) and 34(2) of the Prison Rules 1999 (SI 1999 No.728) amounts to a breach of his legitimate expectations and the Secretary of State's public law duty.
Standing
At one time there was an issue raised on behalf of the Secretary of State as to whether the Claimant has standing to bring this claim for judicial review. However, since permission has now been granted, the Defendant has not actively pursued that objection and has focussed on the merits of this claim for judicial review.
Standing is not a matter for the parties alone, since it goes to the Court's jurisdiction and jurisdiction cannot be conferred by consent: see R v Secretary of State for Social Services, ex p. CPAG [1990] 2 QB 540. However, in the circumstances of the present case, I am satisfied that the Claimant does have standing to bring this claim for judicial review, since I consider that he is a person with a sufficient interest in the matter to which it relates: see section 31(3) of the Senior Courts Act 1981 and R v Commissioners of Inland Revenue, ex p. NFSSB [1982] AC 617.
The First Issue: Applicability of the Health Act 2006
The Claimant submits that, in deciding that he will not grant to all prisoners the right of access to the SFCL helpline, and that he will not do so on a confidential and anonymous basis, the Secretary of State has proceeded on an erroneous understanding of the law.
The Secretary of State is of the view that Chapter 1 of Part 1 of the Health Act does not bind the Crown and that, accordingly, it does not apply to state prisons. If that is right, the Secretary of State contends,...
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