The Supreme Court rules a smoking ban cannot be enforced in English prisons

The UK Supreme Court has ruled that a prohibition on smoking cannot be enforced in prisons in England and Wales.

You can find the judgment and summary here.

The issue was brought to the Supreme Court by a serving prisoner at HMP Wymott, Paul Black. He complained that his health problems were being exacerbated by passive smoking. The Court held that health regulations do not apply to Crown premises, which includes prisons.

In 2015, Black was successful in the High Court, which ruled that the ban must also be applied to state prisons and other Crown premises in England and Wales. The Government however appealed this decision, after concern that a smoking ban in prisons could cause discipline problems and risk the safety of staff and inmates.

In its decision, Lady Hale, President of the Supreme Court, expressed "considerable reluctance" in concluding that when the Health Act 2006 was passed (the Act which made provision for the "smoking ban"), Parliament did not mean the ban to extend it to government or Crown sites. This implies that the prohibition applies only to offices, enclosed areas, bars and other public spaces. She said:

“Had Parliament intended part 1 of chapter 1 of the 2006 Act to bind the Crown, nothing would have been easier than to insert such a provision... The report of the health committee [at the time] does indicate that parliament was alive to the question of whether the smoking ban would bind the Crown and aware of the case for further exemptions if the act were to do so... It might well be thought desirable, especially by and for civil servants and others working in or visiting government departments, if the smoking ban did bind the Crown... But the legislation is quite workable without doing so.”

At present, the Ministry of Justice has introduced a smoking ban in some prisons in England and Wales.

Whilst this judgment may appear to be a victory for prisoners who support smoking in prisons, it raises questions which stretch beyond the custodial establishment. The wider issue relates to government properties, including courts and JobCentres. The effect of this judgment seems to be that  individuals working or visiting government properties are not afforded the same protection enjoyed in non-government properties which are bound to enforce the ban.

The Parole Board and Offending Behaviour Programmes

Last month, the Chair of the Parole Board, Professor Nick Hardwick, gave a speech to the Butler Trust at an event which marked the 50th Anniversary of the Parole Board of England and Wales. 

The Parole Board is the independent body that carries out risk assessments on prisoners to determine whether they can be safely released into the community.

The Butler Trust is a charity which “recognises, celebrates, develops and disseminates outstanding work and best practice across UK prisons, probation and youth justice.” Further information can be found here.

A transcript of Professor Hardwick’s speech can be found here.

The accompanying presentation can be found here.

A summary of the event can be found here.

In his speech, Professor Hardwick reflected upon the work the Parole Board has done over the past 50 years, and considered what the future of the Board’s work may involve.

Assessing a prisoner's risk involves taking into account “static” risk factors, such as the circumstances and gravity of the index offence. Other factors also play a part in the decision-making process, including what the prisoner has done to address his offending behaviour. To this end, offending behaviour programmes are offered in prisons, in an effort to assist prisoners to address their offending behaviour. It is hoped that such work will assist the prisoner in decreasing his risk. I have written about these courses in the past here. Professor Hardwick referred to these programmes in his speech, stating:

 “[…]we lose something if our decisions simply turn on risk algorithms and the statistical analysis of the effectiveness of off ending behaviour programmes and avoid moral and ethical judgement.”

The effectiveness of such programmes has been the subject of much dispute in recent times. In addition to this, the availability of specific programmes in certain establishments is another problem frequently encountered in practice.

In reality, prisoners often find themselves unable to demonstrate a reduction in risk without completing a relevant programme. Whilst the Parole Board may consider factors such as an exemplary custodial record and good behaviour in prison, it is unlikely that in the absence of specific offence-focussed work, the conclusion that an offender has adequately addressed his “risk factors” can safely be drawn.

This can be illustrated with reference to R (Gill) v Secretary of State for Justice [2010] EWHC 364 (Admin). A full transcript can be found here. In this case, the Court stated:

 “It is not uncommon for off ending behaviour programmes to be regarded as a requirement to demonstrate risk reduction before the Parole Board. Perhaps most notable in that regard are the comments of the law lords in R (on the application of Wells) v Parole Board [2009] UKHL 22; 2009 2 WLR 1149 , paras 26, 36. In her statement for this hearing, Dr Jo Bailey, the lead psychologist for the operations directorate of the National Off ender Management Service, emphasises that participation in off ending behaviour management courses is neither necessary nor sufficient to achieve release.

She explains that the Prison Service uses seven so-called pathways to reduce re-off ending as a basis for sentence planning targets of individuals:

(i) accommodation, Offending Behaviour Programmes and the work of the Parole Board.

(ii) education, training, employment,

(iii) mental and physical health,

(iv) drug and alcohol misuse,

(v) finance, benefit and debt,

(vi) children and families of off enders and

(vii) attitudes, thinking and behaviour.

Those involved in the risk assessment and management of off enders are to apply a holistic approach through the pathways model, as a means of achieving and demonstrating a reduction in the risk of re-off ending.” [39]

It is encouraging that the importance of factors other than the completion of courses are being highlighted once again, this time by the Chair of the Parole Board. However, for the time being, many prisoners feel that the completion of such courses still remains at the heart of risk reduction, and ultimately, to release. Nevertheless, Professor Hardwick’s focus on factors other than the completion of OBPs is hopeful. 

x