20 June 2012
Leigh Day & Co has today issued judicial review
proceedings on behalf of Mr X, a non-smoking prisoner, who claims that being forced to share a cell with a smoking prisoner represents a breach of his human rights
Mr X is a life-long non-smoker. However, during his imprisonment he has repeatedly been forced to share his cell with a smoker, most recently for seven days in March 2012 whilst an inmate at HMP Birmingham. Despite making repeated complaints to prison staff, nothing was done to resolve the situation. Mr X is aware of other non-smoking prisoners, at HMP Birmingham and elsewhere, who have to share cells with smokers.
Mr X finds being exposed to cigarette smoke unpleasant, and is concerned about the long term health consequences. In reports of 1998 and 2004, the Scientific Committee on Tobacco and Health (SCOTH) concluded that exposure to cigarette smoke was a cause of a range of serious medical conditions including lung cancer and heart disease.
As a result of the Health Act 2006, smoking has been forbidden in virtually all enclosed and substantially enclosed work and public spaces in England since July 2007. However, the Act provides for limited exemptions. The Smoke-Free (Exemptions and Vehicles) Regulations 2007 identify a number of exemptions, including prison cells for adult prisoners.
The Prison Service policy on smoking is contained in Prison Service Instruction 2007/09 (‘PSI 2007/09’) which states that Prison Governors should designate all cells in an adult prison as rooms in which smoking may take place. This is identified as a mandatory instruction. The PSI also states that non-smoking prisoners must not be required to share a cell with smokers who are actively smoking although, by way of contrast, this is not identified as a mandatory instruction and appears to occur regularly. HMP Birmingham accepts that Mr X was forced to share a cell with a smoking prisoner in March 2012, although disputes when he first complained.
Prison health specialist lawyer Sean Humber
is arguing that forcing Mr X to share a cell with a smoking prisoner is unlawful and a breach of his human rights, particularly a violation of Articles 8 (right to respect for private and family life). It is also argued that the combined effect of the Act, Regulations and PSI amount to a violation of Article 14 (prohibition of discrimination) in that non-smoking prisoners are treated differently and are in a worse position than non-smokers in the wider community.
Sean Humber, a partner in the Human Rights Department of Leigh Day & Co stated:
“Despite accepting that it shouldn’t occur, non-smoking prisoners such as Mr X are regularly required to share cells with smoking prisoners. Mr X is anxious that the problem does not recur and is asking the court to confirm that this practise breaches his human rights and is unlawful.
“As part of our continuing investigation of Mr X’s claim, we also wish to hear from other non-smoking prisoners who have been forced to share cells with smoking prisoners.”
Leigh Day & Co instructed Hugh Southey QC, a leading human rights barrister at Tooks Chambers, in this matter.
For further information, please contact Sean Humber
or Benjamin Burrows
on 020 7650 1200
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