Friday, February 12th, 2016

Petition of William Lewis Gage [2015] CSOH 174

Kay Springham appeared for Scottish Government Legal Directorate in this petition for Judicial Review of Mr Gage’s detention by the Scottish Ministers in conditions in which he is exposed indoors to environmental tobacco smoke (ETS). The petitioner is serving a life sentence at HMP Shotts – his sentence will expire in 2023. The Scottish Ministers are responsible for prisons in Scotland. The petitioner was seeking a declarator that it is unreasonable and therefore unlawful for the Ministers to detain him in conditions in which he is exposed to environmental tobacco.

Counsel for the petitioner made it clear that he sought to be held in “part of one of the 15 prisons comprising the Scottish prison estate where he would not be exposed, indoor, to ETS.” It was submitted, “his detention in conditions believed to be unsafe, in circumstance where no attempt was made to provide alternative arrangements, constituted an unreasonable exercise of the [Scottish Minister’s] powers.” In doing so, the exercise of their powers was outwith the ‘range of reasonable exercise’ of the powers held by them. The relevant test to establish this was whether or not the exercise of the powers in question was within the range of reasonable responses.

Reference was made to case law, namely Wednesbury; R (Khatun) v Newham London Borough Council; Pham v Secretary of State for the Home Department; R (Bourgass) v Secretary of State for Justice; Shahid v Scottish Ministers. In terms of the facts considered, Lord Armstrong accepted that exposure to ETS is extremely damaging to non-smokers. It was the policy of the Scottish Ministers to protect non-smokers in prison from such exposure. Affidavit evidence showed that the petitioner believed most of the prisoner’s at HMP Shotts smoked and it was allowed to collect in the halls and travel into other cells. Additionally, there were a number of complaints logged from the petitioner regarding ETS between 2010-2013. Despite measures taken by the petitioner to restrict smoke entering his cell, his cell continued to smell of smoke at night.

In July 2003, the Scottish Prison Service published a policy document: “Smoking Policy in the Scottish Prison Service”, which was updated in March 2006.  It was stated:  “In the work place… Scottish Prison Service will give priority to the needs of non-smokers.”   From February 2010, “escorting prison staff were not required to take prisoners into any enclosed space where other persons were smoking.” Reference was made to affidavit evidence from personnel within the prison service, which showed that little has been done to deal with smoking in prisons and the protection of non-smokers. This is despite the fact that government proposals to implement a smoking ban in prisons in England and Wales had been introduced following a 2014 publication.

It was considered that the “failure to consider alternative courses of action was a disproportionate stance, where, on the evidence, there appeared to be some alternatives worthy of consideration”. Lord Armstrong provided a list of example steps that could have been taken, as considered in publications and affidavit evidence, including the establishment of non‑smoking areas in prisons other than HMP Shotts and the replacement of grille gates. The situation was compared to that in Napier v Scottish Ministers and the failure to prevent exposure to ETS was no more than a matter of choice on the part of the Scottish Ministers. “There was no evidence that work currently being undertaken could not have been done earlier, and the fact that it was being undertaken now suggested that it could have been done before.”

Ms Springham submitted for the Ministers that it was not the case that they had done nothing, as suggested by the petitioner. Rule 14 of the Prisons and Young Offenders Institutions (Scotland) Rules 2006 had been put into effect to reflect the intention behind the implementation of the Smoking, Health and Social Care (Scotland) Act 2005. The measures implemented “had been used in particular to place restrictions on the areas in which prisoners could smoke.” Policy was introduced in July 2003 “which required all areas within prison establishments to be designated as non-smoking areas unless designated otherwise.”  While carrying out his sentence, the petitioner has been in single cells and had never had to share with another inmate.

In terms of relocating the petitioner to a prison where there were non-smoking areas (HM Young Offenders Institution, Polmont and HMP Cornton Vale) it was inappropriate. One was for young offenders, and the other was only able to establish a non-smoking area because of the particular design characteristics of that establishment. Lord Armstrong noted the difficulties that would be faced in attempting to make HMP Shotts a smoke-free zone. It was submitted that while alternatives to a ban were suggested, there was an absence of informed research and the evidence that was present suggests that it is harder to manage a partial smoking bad than a full smoking bad.

Ms Springham submitted on the behalf of the Scottish Ministers “[i]t was artificial to consider the petitioner’s situation in isolation.  It was necessary to take into account not just his position but those of all other prisoners currently detained.  The issues raised involved the entire prison service and its whole estate.”  The Tobacco Strategy Workstream group met more than six times in 2015 and commissioned a review on experiences in other jurisdictions of introducing smoke-free prisons. It transpired that it was a particularly complicated process and there was “a need to take account of the real risk of instability within prisons following the introduction of non-smoking regimes.”

Lord Armstrong assessed that, given the context of the issue, “the appropriate test was that of Wednesbury reasonableness, as developed to embrace the issue of whether the decision fell within the range of reasonable responses.” When considered from this point of view, it was reasonable to detain the petitioner in HMP Shotts – because of the rehabilitation programmes he required. Additionally, the Scottish Government has been progressively implementing changes relating to smoking in prisons since 2002. Ultimately, Lord Armstrong decided to repel the petitioner’s plea. On the evidence presented, the petitioner complains about the slowness of changes. However, the implementation of the Government’s policy is not straightforward.

A copy of Lord Armstrong's Opinion can be viewed here.

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