If they ban smoking in prison, the MoJ will have riots on its hands

By Alex Cavendish

It’s not often that a serving prisoner can make so much trouble for the prison service, but one persistent inmate has managed to create a real headache for justice secretary Chris Grayling – and it's all over smoking behind bars. The latest high court defeat for the hapless Grayling – his ninth in succession – came with the handing down of a judgment by Mr Justice Singh yesterday which could expose HM Prison Service to a whole world of trouble.

The idea of banning smoking in prisons isn’t new. Both the Ministry of Justice (MoJ) and the National Offender Management Service (Noms) have looked at the issue for some years and the idea has been quietly kicked in the long grass on 'operational grounds' every time. That is MoJ-speak for not wanting to set off widespread riots across the prison estate.

Governors and uniformed staff have consistently warned that understaffed jails may not be able to contain violent disorder if a total smoking ban is imposed on adult male prisoners, at least 80% of whom smoke. Rolling tobacco is available from every prison canteen and is also used as a form of currency in prisons that are supposed to be cash-free. Smoking calms tense prisoners down and helps to keep them quiet and compliant.

There was a time when smoking – by members of staff and inmates – was tolerated across most areas of prisons: on landings, in workshops and on the exercise yards. But no longer. Since the Health Act came into effect in 2007, smoking has been banned in all enclosed public places and workplaces. The MoJ started rolling out restrictions on smoking with the aim of protecting non-smokers from the effects of passive smoking, not only on health grounds but also to reduce the likelihood of legal action being brought against the prison service by inmates and employees alike.

In recent years the only place that lighting up is now permitted inside our jails is in prison cells when the door is closed and windows open. In practice, however, these rules are widely flouted by prisoners (and many staff). Cons still get away with smoking on outdoor exercise yards, while some uniformed officers sneak into the cells to have a quick drag with friendly inmates they can trust not to 'grass them up' to managers. In prison workshops the usual place of choice to enjoy a quick roll-up is in the toilet cubicles. All illegal, but nonetheless tacitly tolerated in most jails in order to keep the peace.

Now this convenient modus vivendi has come a cropper in the high court. The case was brought by a non-smoking prisoner who suffers from various health problems, including angina. His claim has exposed the way in which the Health Act is routinely flouted at HMP Wymott, although what he described in his submissions to the court will be familiar to anyone who has first-hand experience of prison life, including members of staff and prisoners smoking on landings and workplaces.

The prisoner campaigned to allow inmates to report breaches of the Health Act to the NHS Smoke-Free Compliance Line (SFCL). After various internal applications and complaints, this particular prisoner was permitted to have the SFCL phone number added to his list of approved telephone numbers, although he claimed that when he was told it had been allowed, the officer concerned informed him that: "You can have the grass line put on your account." It’s pretty evident that attempts to enforce the law on smoking in enclosed public areas are as unpopular with some prison staffers as they are with most inmates.

The latest high court mishap for the justice secretary came about because Grayling dismissed the prisoner's concerns as being "exaggerated". Following that response, it ended up in the high court for judicial review.

Although the specific issue of restricting smoking in prisons may appear of minor significance compared to other recent defeats in court for the justice secretary, this judgment is important because it clearly brings the prison system within the ambit of the Health Act. As Mr Justice Singh pointed out, if the Crown is not bound by the Act, then this could mean that "a large number and type of public buildings and spaces would fall outside the scope of the Act" – in effect depriving government employees of the legal protections contained in the legislation. Special pleading in the case of prisons just wasn't going to cut it.

Grayling's case wasn't helped by the governor of HMP Wymott's admission in evidence that because of current staffing levels at the prison – and the fact that a large number of prisoners do smoke – breaches of the law might be occurring when officers aren't around to witness it. She also conceded that because smoking is so prevalent among inmates it was "unlikely that many prisoners would complain" about illicit smoking in public areas.

That isn't the justice secretary's only setback in the case. As Mr Justice Singh rather crisply pointed out, refusing all prisoners access to the telephone line was based on "an understanding of the law which is wrong". It's not the first time that the higher courts have highlighted the current lord chancellor’s legal 'misunderstandings'.

The end result is that the High Court has found that the Health Act does apply to prisons and now the MoJ and Noms will be expected to abide by the letter of the law, even if this could lead to further unrest and disorder in our overcrowded and understaffed jails. The latest judgment also has the potential to open the door to legal claims concerning the negative impact of tobacco smoke on non-smokers if the rules are being flouted or ignored. What's the betting that the SFCL 'grass line' will be getting plenty of calls in the near future?

Alex Cavendish writes extensively about prison issues at Prison UK: An Insider's View. Click here to follow him on Twitter.

The opinions in Politics.co.uk's Comment and Analysis section are those of the author and are no reflection of the views of the website or its owners.