I’ll smoke if I want to. Unless I’m in hospital


By Jason Galbraith-Marten QC

The government has just announced its intention to ban smoking in all prisons in England and Wales. No doubt such a ban will be challenged as an unlawful interference with prisoners’ rights. A recent case from the Court of Session (Inner House) in Scotland may give an indication about how such a challenge will fare.

In M v State Hospitals Board for Scotland [2015] SC 112 the Court allowed an appeal against the decision of Lord Stewart sitting in the Outer House and ruled that a comprehensive smoking ban at the State Hospital for those detained by virtue of a court order made under the Criminal Procedure (Scotland) Act 1995 is not unlawful.

The Court (Lady Paton dissenting on this point), whilst accepting that detained persons continue to enjoy all the fundamental rights and freedoms guaranteed under the European Convention of Human Rights save the right to liberty, did not think that the smoking ban had a sufficiently adverse affect on a person’s physical or psychological integrity or his right to personal development so as to engage Art. 8 of the Convention (the right to respect for private and family life).

‘Smoking’ said Lord Carloway ‘is essentially no different from the consumption of other products designed to sustain life or provide enjoyment or both … A decision to prohibit a particular product, or brand of product, does not engage Art. 8 such that every decision to do so requires to be justified …’

But in any event the Court found that the ban was justified under Art. 8(2). It answers ‘a pressing social need to reduce the incidence of smoking, both generally and in health institutions in particular.’

Rather ironically in the light of the recent announcement, the petitioner sought to argue that he was being discriminated against reading Art. 8 together with Art. 14 because convicted prisoners in Scotland do currently have a right to smoke. The Court rejected this. A hospital is not the same as a prison.       

Jonathan Mitchell QC of Cloisters is now instructed by the petitioner to appeal to the UKSC.

Pending that further appeal the case brings Scotland in to line with the position in England, as established in the case of R (on the application of N) v Secretary of State for Health [2009] HRLR 31.

Interesting footnote: a Bill currently before the Scottish Parliament, the Health (Tobacco, Nicotine etc. and Care) (Scotland) Bill, makes it an offence for a person to smoke within a designated area outside of buildings on hospital sites. It will effectively extend the indoor smoking ban under the Smoking, Health and Social Care (Scotland) Act 2005 to include an outside area. However the Bill contains powers to make various exemptions in relation to the outside smoking ban, including exempting certain hospitals including the State Hospital.