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Prisoners could face smoking crime

Convicted criminals could face committing a new crime - smoking in communal areas of state jails.

A High Court judge in London has declared in a landmark ruling that the 2006 Health Act applies to all Crown premises, including prisons.

Mr Justice Singh rejected Justice Secretary Chris Grayling's argument that the Crown had immunity from the Act, which prohibits lighting up in enclosed public places and workplaces.

The judge accepted his ruling had wide-ranging implications and said it should not take effect until Mr Grayling has had a chance to appeal.

The judge was told by Government lawyers that criminalising smoking could lead to unrest in the jails of England and Wales.

Prisoners can smoke in their cells with the door shut and outside in exercise yards, but both inmates and staff could face prosecution for lighting up in communal areas if today's ruling is not overturned on appeal.

Today's case was brought by Paul Black, an inmate at HMP Wymott in Lancashire, who says he suffers from a range of health problems made worse by second-hand smoke.

Lawyers for Black, a sex offender who has been at Wymott since 2009, argued both prisoners and staff were guilty of illicit lighting-up in areas prohibited under prison rules, including on landings, in laundry rooms and healthcare waiting rooms.

Lawyers for the Justice Secretary maintained the rules and regulations, especially the sanction of withdrawal of privileges, were sufficient to deal any problem.

The Health Act already applies to private prisons as they are not Crown premises.

Mr Justice Singh, sitting in London, declared: "In my judgment it is clear from the terms of the 2006 Act that the intention of Parliament was indeed that it should apply to all public places and workplaces which fell within its scope, including those for which the Crown is responsible."

Giving permission to appeal, the judge acknowledged concerns in the Prison Service over the impact of his decision on "prisoners who feel the need to smoke and may be resistant to the criminalising of that conduct in places where in my view the Health Act does apply".

Black had also argued that prisoners were legally entitled to anonymous and confidential access to the NHS freephone smoke-free compliance line to report infringements of the rules.

The judge said that issue should be reconsidered by the Justice Secretary in the light of his judgment.

Black is serving a sentence of indeterminate detention for public protection (IPP) after being convicted in 2007 of sexual assault and outraging public decency.

His minimum term in jail expired after 203 days but he cannot be released on licence until the Parole Board decides he is no longer a danger to the public.

Black's solicitor Sean Humber, head of the Prison Law Team at Leigh Day, said: " Today's judgment confirms that the legal restrictions on smoking apply every bit as much in prisons as in the public places and workplaces in the wider community.

"The judgment is important in confirming that prisoners are entitled to the same level of protection from the risks posed by second-hand smoke as everyone else."

An MoJ spokeswoman said; " Prison cells in England remain exempt from the smoke-free legislation that came into effect in 2007.

"Since that time we have introduced a number of measures to reduce the risk of exposure of staff and prisoners to second-hand smoke. We are undertaking additional measures to continue to lessen the impact of smoking in prisons.

"This includes tightening our current smoking controls, undertaking air quality monitoring in prison accommodation, and maximising the provision of smoking cessation support to those prisoners who want to stop smoking."

Ukip deputy leader Paul Nuttall warned that placing restrictions on prisoners smoking "is going to cause unrest in many prisons".

Mr Nuttall said: "I'm no defender of prisoner rights, but since it is impractical to force prisoners to leave the premises whenever they need a cigarette, smoking in prisons may be something we need to allow."

Dr Penny Woods, chief executive of the British Lung Foundation, said: "It is possible that there will be opposition from inmates to this development, but it may also support their health and happiness if it is used by prisons as an opportunity to further integrate smoking cessation support into rehabilitation programmes.

"Smoking rates are much higher among prisoners than the wider population, and there is a commonly-held belief that smoking is one of the remaining pleasures accessible to inmates - something that harms your lungs but at least gives you enjoyment and alleviates stress.

"Yet the fact is that studies suggest a strong link between smoking and increased rates of stress, anxiety and depression, not to mention the well-established links with cancer, lung and heart disease."

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