Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 174

 

P584/15

OPINION OF LORD ARMSTRONG

In the petition of

WILLIAM LEWIS GAGE (AP)

Petitioner;

for

Judicial Review of his detention by the Scottish Ministers in conditions in which he is exposed indoors to environmental tobacco smoke.

 

Petitioner:  Pirie;  Drummond Miller LLP

Respondents:  Springham;  Scottish Government Legal Directorate

16 December 2015

Introduction
[1]        The petitioner is a prisoner serving a life sentence at HMP Shotts.  He has been detained there since 2004.  The punishment part of his sentence will expire in 2023.  The respondents are the Scottish Ministers who are responsible for prisons in Scotland.  The petitioner seeks a declarator that it is unreasonable and therefore unlawful for the respondents to detain him in conditions in which he is exposed to environmental tobacco smoke (“ETS”). 

[2]        The effect of the relevant rules and policies, operating in Scottish prisons, is summarised in the petition as follows: 

“10.      …(Rule 36 of the Prisons and Young Offenders Institutions (Scotland) Rules 2011) provides that prisoners may only smoke in these areas of a prison:  (a) in a cell or room in which a single prisoner is accommodated;  (b) in a cell or room (i) in which two or more prisoners are accommodated and (ii) has not been designated as a non-smoking one;  and (c) in the open air in a place specified in a direction by the respondents.

 

11.       … since October 2009 the Scottish Prison service has operated a hall in HM Young Offenders Institution Polmont in which only non-smokers are eligible to be detained.  It operates areas in HM Prison Cornton Vale that it designates as non-smoking areas. 

 

12.       … on 26 March 2006, the Scottish Prison Service introduced a smoking policy that includes that members of its staff must consider ventilating a cell in which a prisoner has smoked before they carry out a routine search of it.  Since 31 March 2008, the Scottish Prison Service has not permitted anyone who is working in or visiting a prison to smoke within its boundary.  Since 1 February 2010, the Scottish Prison Service has not required any members of its escorting staff to take prisoners into any enclosed space where other people are smoking and has forbidden prisoners from smoking when members of its escorting staff are present.”

 

It is accepted by the petitioner that Rule 36 is enforced effectively. 

 

Submissions
[3]        Counsel for each party helpfully provided written notes of argument (respectively numbers 13 and 15 of process).  I have taken the written submissions, together with the submissions made at the Bar, fully into account in what follows. 

 

Submissions for the petitioner
[4]        It was made clear at the outset that what the petitioner sought to achieve was to be held in a part of one of the 15 prisons comprising the Scottish prison estate where he would not be exposed, indoors, to ETS.  He did not seek any form of ruling in relation to smoking out of doors, and neither was he seeking a ban on smoking in all Scottish prisons.  The general premise behind the petitioner’s submissions was that his detention in conditions believed to be unsafe, in circumstances where no attempt was made to provide alternative arrangements, constituted an unreasonable exercise of the respondents’ powers.  Such exercise by the respondents of their powers was outwith the range of reasonable exercise of the powers available to them.  It was accepted by the respondents that the relevant test was whether or not the exercise of the powers in questions was within the range of reasonable responses. 

 

(i) The applicable case law
[5]        Where the exercise of power was draconian or oppressive, the court would condemn it as irrational or perverse.  Although that was the language of Wednesbury (see Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1KB 223), such intervention by a court was more aptly articulated in terms of the proportionality principle (R (Khatun) v Newham London Borough Council [2005] QB 37, at paragraph 41). 

[6]        Under reference to Pham v Secretary of State for the Home Department (Open Society Justice Initiative Intervening) [2015] 1 WLR 1591, three particular aspects of appropriate review were apparent:  (1) the Wednesbury principle  did not constitute a rigid test of irrationality;  (2)  in applying the Wednesbury approach, the weight to be accorded to the decision-maker’s view, and the intensity of scrutiny to be applied, was dependent on context;  and (3) the difference between the Wednesbury approach and that of the proportionality principle was related to the structure of the analysis carried out, rather than to intensity of scrutiny or likely outcome;  (per Lord Carnwath, at paragraphs 59 and 60;  per Lord Mance, at paragraphs 94‑96;  per Lord Sumption, at paragraphs 105, 107 and 109;  per Lord Reed, at paragraphs 113-117).  Where the protection of fundamental rights was concerned, it was appropriate to ensure that the common law had the flexibility to produce the same result as the application of the proportionality principle would. 

[7]        It was submitted that where the circumstances of detention gave rise to conditions which were particularly harmful to health, an intense level of scrutiny was required in determining whether the decision is question was reasonable.  A court should require cogent justification for the decision before making a finding of reasonableness (R (Bourgass) v Secretary of State for Justice (Howard League for Penal Reform Intervening) [2015] 3 WLR 457, at paragraph 126). 

[8]        In such cases, in determining whether a decision was reasonable, it was relevant to take into account any failure to consider appropriate alternatives (Shahid v Scottish Ministers [2015] UKSC 58, at paragraph 74-86).  In that case, the harmful risks involved in prolonged segregation were well known and accepted by government;  despite the fact that the appellant represented a difficult management problem, and despite the speculative nature of the likelihood that any alternative steps taken would effectively address the issue, given the known risks, the failure to take any such steps rendered the segregation disproportionate;  the finding of disproportionality extended to the whole period of segregation, including a period, at a very late stage, when a plan designed to address the issues had been put in place;  and the declarator sought, at common law (and under reference to ECHR, article 8 (see European Convention for the Protection of Human Rights and Fundamental Freedoms)) was granted. 

[9]        The extent to which a court will attribute due weight to the decision of a public authority will depend on the extent to which the public authority has carefully weighed the various competing considerations (Belfast City Council v Miss Behavin’Ltd [2007] 1 WLR 1420, per Lord Roger, at paragraphs 26 and 27;  per Baroness Hale, at paragraph 37;  per Lord Mance, at paragraph 46 and 47;  per Lord Neuberger, at paragraphs 90 and 91). 

[10]      A decision cannot survive the court’s scrutiny in relation to a point which turns on the issue of its proportionality, where there is no evidence that the decision-maker has ever properly considered the point (R(Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre and others intervening) [2012] 1 AC 621, at paragraphs 45, 58). 

 

(ii) The relevant facts
[11]      It was well established, and accepted by the respondents, that long-term exposure to ETS posed health risks to non-smokers.  That it was accepted by the respondents was apparent from the terms of the many documents, on the subject of smoking and its associated health risks, which had been published by them or on their behalf. Against that background, it was a stated policy of the Scottish Government to seek to protect non-smokers from harm caused by ETS and to promote an environment in Scotland which was free from tobacco smoke, including the promotion of prisons which were smoke-free indoors.  Reference was made to the World Health Organisation  Framework Convention on Tobacco Control;  to the Scottish Government document:  “Creating a Tobacco Free Generation – A Tobacco Control Strategy for Scotland” (“the Scottish Government Tobacco Control Strategy”);  to the Scottish Executive document:  “A Breath of Fresh Air for Scotland”;  to the NHS Health Scotland document:  “Reducing Smoking and Tobacco-related Harm – A key to transforming Scotland’s health”; to a  draft regulatory impact assessment of the draft Smoking Health and Social Care (Scotland) Act 2005 (Prohibition of Smoking in Certain Premises) Regulations 2005  ;  to the Scottish Government draft: “A Consultation on Electronic Cigarettes and Strengthening Tobacco Control in Scotland”;  to various statements by the Minister and Deputy Minister for Health and Community Care; and to several Scottish Government news releases. 

[12]      Reference was made to an affidavit by the petitioner.  His evidence was that the majority of prisoners in HMP Shotts were smokers.  When prisoners smoked in their cells, their cell doors were often open, allowing smoke to enter, and collect in, the communal areas of the hall in which the petitioner’s cell was located, and his cell.  Both of the petitioner’s parents were smokers who had died from cancer.  The petitioner had made a number of complaints about exposure to ETS between 2010 and 2013.  He had no enemies in prison and did not require protection.  That being so, his allocation to a particular place of detention did not require consideration of these matters. He had circulated a petition amongst some prison inmates, of whom 57 had confirmed that they would be interested in being detained on a non-smoking landing.  Despite measures taken by the petitioner to restrict smoke entering his cell, his cell continued to smell of smoke at night. 

[13]      As examples of other evidence relating to smoking in prisons, reference was made to the Scottish Prison Service Prisoners Survey 2013;  to Scottish Prison Service document:  “Governors & Managers: Action Notice 01A/10: Stop-Smoking Support for Prisoners:  Guidance, Process and Staff Training”;  and to the NHS Health Scotland document:  “Specification for National Prison Smoking Cessation Service in Scotland”.  On 31 July 2003, the Scottish Prison Service published a policy document: “Smoking Policy in the Scottish Prison Service”, the primary purpose of which was to minimise the effect of passive smoking.  That policy was subsequently updated with effect from March 2006.  In terms of that policy, it was stated:  “In the work place… Scottish Prison Service will give priority to the needs of non-smokers.”   With effect from 1 February 2010, escorting prison staff were not required to take prisoners into any enclosed space where other persons were smoking. 

[14]      Although in a Scottish Prison Service document, entitled “Better health, better lives for prisoners:  A framework for improving the health of Scotland’s prisoners”, it was recommended that consideration be given to the introduction of voluntary smoke-free wings, no such wings had been established.  An aspiration by the Scottish Government to work in partnership with the Scottish Prison Service and local NHS Boards in order to have plans in place, by 2015, that set out how indoor smoke-free facilities would be delivered (as set out in the Scottish Government Tobacco Control Strategy) had not yet been achieved, although work was in progress. 

[15]      Since the publication in February 2014 of The Offender Research Network document:  “Smoking in Prisons in England and Wales:  An examination of the case for public health policy change”, government proposals to implement a smoking ban in prisons in England and Wales had been introduced. 

[16]      Reference was made to an affidavit by Ruth Parker, Head of Health and Wellbeing,  Scottish Prison Service, the content of which included the following: 

“7.       At the beginning of 2015 I took the lead in the setting up of the Tobacco Strategy Workstream group, which is a joint workstream with representation from Scottish Government, Scottish Prison Service and local NHS Boards, reflecting the partners identified in the Tobacco Control Strategy.  The membership of the Workstream group is representatives from Scottish Government, Scottish Prison Service, ASH Scotland and local Health Boards. 

 

8.         The first meeting of the Workstream group was in February 2015.  I have provided the terms of the reference of the group and its members.  Since then the Workstream group has met six times (it did not meet in July 2015 because of summer leave of members).

 

9.         The Workstream group has commissioned Glasgow University to carry out a literature review on the experience in other jurisdictions of smoke-free prisons, lessons learned in these other jurisdictions and what evidence there is the for the Workstream group to draw on in relation to our joint action plan.

 

13.       The Workstream is meeting in September to consider the available evidence in order to inform the approach that will be used to deliver against Action 31 of the Tobacco Control Strategy.  I doubt that the action plan will be in place by the end of 2015 since it will have to be agreed by the Scottish Government, Scottish Prison Service and NHS Health Boards. 

 

20.       To introduce prisons where there is no smoking indoors would raise very complex issues and there is no simple solution.  The aim of the Tobacco Strategy Workstream is to consider the available evidence, including the lessons learned from other jurisdictions and the State Hospital experience.  There are lots of issues as to how smoke-free prisons would be managed given the prevalence of smoking in prisons (74% of prisoners smoke) compared to with the non-prison population (24% of the non-prison population smoke).  It also has to be borne in mind that Rule 36 of the Prison Rules allows prisoners to smoke in certain areas of the prison including in their cells.  The possibility of disorder within prison if smoking indoors was banned is real.  Recent disorder in Australia after a smoking ban was introduced was discussed at a recent Tobacco Strategy Workstream meeting.”

 

[17]      It was submitted that Ruth Parker’s affidavit provided no evidence that smoking cessation rates had increased, that a smoke-free prison service could not be achieved, that any work was done before 2015 towards achieving it, or that any consideration had been given to means by which prisoners could be protected from inhaling the smoke of other prisoners, short of instituting a smoke-free prison service, for example, by instituting non-smoking prisons, or non-smoking halls or sections of halls in prisons.  Reference was made to an affidavit by James Kerr, the Governor of HMP Shotts.  In outlining the internal layout of the prison, he described the grille gates, normally unlocked, which separate the sections of each flat.  It was submitted that there was no evidence to suggest that consideration had been given to replacing the grilles, which prevented smoking segregation, with smoke barrier doors.  Similarly, it was submitted that there was no evidence to suggest that a voluntary arrangement, which would result in prisoners keeping their cell door closed when smoking, had ever been tried. 

 

(iii) Detention involving exposure to ETS is unreasonable
[18]      Specific reference was made to paragraphs 11-13 of the note of arguments for the petitioner.  In a set of circumstances which included 15 different prisons within the Scottish prison estate, and where there was scope to manage the situation effectively, it was unreasonable to detain the petitioner in a place where he was exposed to ETS.  Following Bourgass, a case in which there was a danger to health, cogent justification was required if there was to be a finding that such detention was reasonable.  If, within the concept of Wednesbury reasonableness, there was room for the same flexibility in relation to the intensity of scrutiny to be applied, and the due weight to be applied, to relevant factors, as was available in the application of the proportionality principle, then it was legitimate to apply what emerged from the reported cases involving decisions based on proportionality, such as Shahid, R(Aguilar Quila), and Belfast City Council.

[19]      There had been a failure to take steps to remedy the situation.  The Tobacco Workstream Strategy group had been working on the issue only in the course of 2015.  The detention of the petitioner under exposure to ETS was as unreasonable as the detention under segregation considered in Shahid was disproportionate.  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, for example the replacement of grille gates, a voluntary system of smoking behind closed doors, the possibility of allocating sufficient non-smoking prisoners to produce a group large enough to justify a non-smoking hall, a ban on smoking in cells in HMP Shotts, the establishment of non‑smoking areas in prisons other than HMP Shotts, or the banning of smoking in every Scottish prison.  In line with the ratio of Shahid, a failure to consider an alternative, even where it was speculative to consider any likely success of the measure, was sufficient to render detention unreasonable.  In circumstances where there was no evidence that alternatives had been properly considered, there was no scope, in assessing the respondent’s position, to attach weight to such matters having been considered.  The petitioner’s own survey had resulted in 57 prisoners indicating an appetite for detention without exposure to ETS.  That was a number sufficiently large to suggest that in Scotland, as a whole, there was likely to be a like-minded group of prisoners, who did not present conduct-related management problems, and who could be allocated for detention together.  Despite recognising the issue of harmful exposure to ETS for some 10 years, the respondents had done nothing material to bring such conditions to an end, other than to set up a group which had met six times and had commissioned a literature review.  The situation was analogous to the facts considered by the Lord Ordinary in Napier v Scottish Ministers 2004 SC 229 (at paragraphs 84-91).  The failure to address the issue of exposure to ETS was equivalent to the failure to address the issue of slopping out.  The failure to prevent exposure to ETS was no more than a matter of choice on the part of the respondents.  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. 

 

(iv) Response to submissions for the respondents
[20]      It was wrong to suggest that the petitioner had to be detained where he was for reasons of policy which required the allocation of a prisoner to the establishment which offered the regime most appropriate to meet his identified needs and to provide proximity to his home area.  First, the respondents were not required to follow policy if to do so would be an unreasonable exercise of their statutory powers.  The duty to follow policy was subordinate to the duty to exercise statutory power lawfully.  It was wrong to allow policy to fetter discretion if there was good reason not to follow it (Mandalia v Secretary of State for the Home Department [2015] UKSC 59, at paragraphs 29-31).  Secondly, in any event, the terms of the policy did not require a prisoner to be held in any particular prison.  Reference was made to Scottish Prison Service policy document: “Governors & Managers: Action Notice GMA 16A/14” which indicated that where a prisoner’s health needs could not be met within the normal prison of allocation, it might be necessary to allocate him to another prison. 

 

Submissions for the respondents
[21]      It was not the case, as asserted for the petitioner, that the respondents had done nothing to address the issue of ETS for a period of over 10 years.  Against the statutory framework which vested general superintendence of prisons in Scotland in the respondents (the Prisons (Scotland) Act 1989, section 3) and empowered them to direct that a prisoner be detained in any prison or that he be moved from any prison to another prison (section 10), 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.  Subsequently, the Prisons and Young Offenders (Scotland) Rules 2011 had been enacted, Rule 15 of which (in terms similar to those of the former Rule 14) provided as follows: 

“(1)      The Scottish Ministers may set aside particular prisons or parts of prisons for particular categories of prisoners or particular purposes. 

 

(2)      Subject to paragraph (1) the Governor may allocate within a prison a particular part of the prison in which a prisoner, or any particular category of prisoners, may be confined having regard to –

 

(a) the categorisation of a prisoner; 

 

(b) the supervision level of a prisoner;  and

 

(c) any other matter affecting the management of a prisoner.” 

 

These measures reflected the intention behind the 2005 Act and had been used in particular to place restrictions on the areas in which prisoners could smoke.  In July 2003, the Scottish Prison Service had implemented the policy:  “Smoking Policy in the Scottish Prison Service” which required all areas within prison establishments to be designated as non-smoking areas unless designated otherwise.  In terms of Scottish Prison Service document: “Governors & Managers:  Advice Notice 30A/04”, dated 3 September2004, prisoners were permitted to smoke in their cells if so designated, but it was recognised that every effort should be made to ensure that smokers and non-smokers were not required to share cells.  Throughout his current sentence the petitioner had been accommodated in single cells.  He had never been required to share a cell with another inmate.  It was also appropriate to recognise that smoking, which some prisoners enjoyed and particularly wished to do, was regarded by many in the prison population as a factor which operated to moderate the impact of detention. 

[22]      Scottish Prison Service policies, such as “Smoking Policy in the SPS” (implemented on 26 March 2006);  and as set out by Scottish Prison Service in “Notice to Staff 57/07”, dated 7 March 2007;  “Notice to Staff 46/08”, dated 5 March 2008; and “Governors & Managers: Action Notice 02A/10”, effective from 1 February 2010; - all directed towards the reduction and control of smoking in the workplace - were consistent with the fulfilment of their duties, as employers, towards their employees. 

[23]      It was the respondents’ stated intention to create a smoke-free prison service (the Scottish Government Tobacco Control Strategy, page 26).  In June 2015, NHS Health Scotland issued the document: “Specification for National Prison Smoking Cessation Service in Scotland”.  Previous policies, designed to support prisoners who wish to stop smoking, had been consistent with that (see Scottish Prison Service documents: “Governors & Managers:  Action Notice 8A/06”, dated March 2006; and “Governors & Managers:  Action Notice 01A/10”, dated January 2010).  In the context of any total smoking ban in prisons, the position of prisoners was not comparable with that of prison staff.  Notwithstanding a prohibition on smoking while at work, prison staff still had the opportunity to smoke while at home.  That was not an option available to serving prisoners. 

[24]      It was also to be noted that the provision of health services in prisons was an NHS function.  It was for that reason that the NHS was represented on the Tobacco Strategy Workstream group, chaired by Ruth Turner.  With a view to implementing its stated policy to create a smoke-free prison service, as part of its aim to create a smoke-free Scotland, the Scottish Government had expressly undertaken to work with Scottish Prison Service and local NHS Boards to “have plans in place by 2015 that set out how indoor smoke-free prison facilities will be delivered” (the Scottish Government Tobacco Control Strategy).

[25]      Against that background, the allocation of prisoners to particular prisons was a matter which was always carefully considered having regard to factors such as proximity to home area, the category of prisoner, and the fact that long-term prisoners have particular needs.  Although the Scottish prison estate extended to 15 prisons, not all of them were suitable for a prisoner such as the petitioner.  Once all appropriate factors had been taken into account, there were resultant limitations within which the allocation of prisoners required to be made.  In that regard, it was not the position of the respondents that they could not depart from policy, and it was accepted by them that they would do so when that was appropriate and required. 

[26]      HMP Shotts, as it now is, was built and came into operation in 2012.  Ventilation throughout the prison was provided by a mechanical ventilation system and by windows which, in cells, were necessarily restricted and therefore provided limited air flow. 

[27]      There were establishments within the Scottish prison estate where designated non-smoking areas had been established.  Blair House, within HM Young Offenders Institution, Polmont, was used as a facility to detain only non-smokers, but these were young offenders, aged 16 and 17 years, to whom it was illegal to sell tobacco.  The establishment of non-smoking areas in HMP Cornton Vale had been possible because of the particular design characteristics of that establishment.  Neither of these establishments would be appropriate for the detention of the petitioner. 

[28]      A number of factors operated to create difficulties in relation to the designation of particular areas within HMP Shotts as smoke-free zones:  viz.  (1) design issues, such as the open grille gates between sections on flats which allowed smoke to pass from one section to another; (2) the designation of an entire flat as a non-smoking area would involve 80 cells and would compromise the ability to manage the risk of disorder or violence; (3) a number of prisoners required to be held separately from the mainstream prison population for their own protection.  Over 70 prisoners were held within the National Integration Centre within HMP Shotts and required particularly specialist management.  More generally, there was a requirement to keep civil and untried prisoners apart from other categories of prisoners.  Prisoners convicted of sexual offences were generally held separately from other prisoners.  Elderly prisoners required consideration to be given to issues of mobility; and, (4) in the context of addiction to tobacco and perceptions of the right to personal choice, removal of what was regarded as a privilege from a volatile population was a matter which could not responsibly be put into effect within a short timescale. 

[29]      On the petitioner’s behalf, a number of possible alternative arrangements as to how a non-smoking policy might be managed, had been suggested.  Although it would be speculative to consider the efficacy of such alternatives in the absence of informed research, in fact there was evidence which suggested that partial bans on smoking were less effective, and more difficult to manage and support than total bans (Offender Health Research Network: “Smoking in Prisons in England and Wales:  An examination of the case for public health policy change”). 

[30]      It 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. 

[31]      The suggested comparison with the position which was considered in Napier v Scottish Ministers 2004 SC 229, was not apt.  That case, which concerned rights under ECHR article 3, involved a factual background in which it was apparent that deliberate decisions had been taken not to address the issue raised, in circumstances where there were available resources and the capacity to do so.  That situation did not arise in the present case.  In the present case, the respondents were moving positively towards the introduction of an effective and properly managed non-smoking prison regime. 

[32]      As regards the petitioner’s own survey of fellow inmates, it was to be noted that of the 57 who had signed his petition, indicating an interest in being accommodated on a non-smoking landing, 31 had also registered as self-declared smokers. 

[33]      The particular rehabilitation programmes required by the petitioner were available only at HMP Shotts and HMP Low Moss.  The requirement on the respondents to ensure provision of such programmes impacted on the process of his allocation to any particular prison. 

[34]      The Tobacco Strategy Workstream group had met more than six times in the course of 2015 and had commissioned Glasgow University to carry out a literature review on the experience in other jurisdictions of introducing smoke-free prisons.  Press reports of experience outwith Scotland indicated that there was a need to take account of the real risk of instability within prisons following the introduction of non-smoking regimes.  The matters currently under consideration were not straightforward and required careful planning in advance of the introduction of appropriate restrictions. 

 

The legal test
[35]      It was accepted that the appropriate test to be applied was whether the relevant exercise of power fell within the range of reasonable responses, and that, in that regard, the question was informed by context.  It was not accepted, however, that the concept of proportionality, as drawn from the decisions in the reported cases cited on the petitioner’s behalf, was applicable or was of assistance in the characterisation of the necessary analysis to be applied.  The structure of analysis to be applied in a review of reasonableness was not the same as that to be applied in a review of proportionality. 

[36]      The issue of proportionality was relevant in ECHR cases where there was interference with an established legal right such as, for example, interference with the right to respect for private life under article 8, where the interference was conceded, and where the question was whether the conceded interference was justified.  Thus, in Shahid, where there had been interference with the right conferred by article 8 (1), the question for determination had been whether, on the basis of proportionality, the interference was justified in terms of article 8 (2), (paragraph 39).  Proportionality had arisen as an issue in similar ways in Belfast City Council and in R (Aguilar Quila).  The issues to be determined in these cases, the resolution of which involved an assessment of proportionality, were not comparable with the issue in the present case. 

[37]      As to the required degree of intensity of any review of reasonableness, it, and the weight to be given to the primary decision-maker’s views, depended on context.  The relevant authorities made it clear that the variable intensity of reasonableness review was appropriate for consideration in cases concerned with the exercise of discretion in contexts where fundamental rights, such as the right to life and freedom of expression, were at stake (Pham, at paragraph 114).  The need for the application of a greater intensity of review, such as was the case in Pham, which concerned the removal of a status as fundamental as citizenship (Pham, at paragraph 60), did not arise in the present case.  In the present case, 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 analysed on that basis, and for the reasons submitted, the decision of the respondents to detain the petitioner in HMP Shotts, albeit in circumstances exposing him to ETS, was within the range of reasonable responses. 

[38]      The Scottish Government had, since 2002, instituted a number of measures and reforms designed to change cultural attitudes towards smoking, and reform of the current arrangements in the prison service was a fundamental part of that process (“a Tobacco Control Strategy for Scotland”, pages 1, 18, 23, 26 and 27). 

 

Decision
[39]      On the basis of the authorities cited to me, I accept that the appropriate approach by which to determine whether or not the exercise of the respondents’ powers to detain the petitoner, under the conditions currently existing in HMP Shotts, is unreasonable and therefore unlawful, is to review it by reference to Wednesbury principles, applied without rigidity, rather than specifically by reference to the proportionality principle.  What was said  by Laws LJ in Khatun (at paragraph 41), concerning the proportionality principle, was essentially an obiter comment and was made under reference to its application where guarantees secured by EHCR were engaged.  Khatun was not such a case.  Since this case is not presented as one involving the breach of a fundamental right, it falls to be distinguished from others, such as Pham, in which the assessment of proportionality was employed in determining the extent to which, if at all, interference with such a right was justified.  Although, in Shahid, it was recognised that in a case involving the imposition of prolonged solitary confinement in prison, it was incumbent on a court to determine whether the measures taken were necessary and proportionate compared to practicable alternative courses of action (paragraph 74), the context of that recognition was a situation which involved a serious restriction of a prisoner’s rights with particularly serious inherent risks of harm to the prisoner.  In Bourgass, a case involving comparable facts, the Supreme Court expressed the appropriate intensity of review differently.  In that case, it was stated that the potential consequences of prolonged solitary confinement were so serious that a court would require cogent justification before being satisfied that the decision to authorise its continuation was reasonable (paragraph 126).  The cases of Shahid and Bourgass concerned similar but very particular facts. 

[40]      Although it was not contested that there are health risks associated with the conditions in which the petitioner is held, I note, in passing, that the circumstances of which he complains have not been brought about by deliberate and positive action and are not intended to place on him a restriction different from the regime generally affecting others held in custody.  It is reasonable to assume that the petitioner’s concerns and the stated policies of the respondents have developed as the result of increased awareness over the years of the dangers of a habit which for many decades was regarded as a social norm.  Viewed against that background, where change for the better would implicitly involve changes in social culture, it is also reasonable to assume that, even in an institutional context, there may be a range of wider consideration to be taken into account.

[41]      It was common ground between the parties that the appropriate test was whether the relevant exercise of the respondents’ powers fell within the range of reasonable responses and that the nature of any review should be informed by the referable context.  It is appropriate, therefore, in reviewing the matter, to identify the parameters of its context. 

[42]      In that regard, the considerations to be taken into account in relation to how prisoners in Scotland are managed include:  (1) the extent of the prison estate;  (2) the internal design of individual establishments;  (3) the need to maintain order and discipline;  (4) the benefit of proximity of a prison to a prisoner’s home area;  (5) the particular category of the prisoner concerned;  (6) the particular requirements of long term prisoners and the extent of the facilities available to address their needs;  and (7) the need to consider not just the petitioner’s individual situation, but that of all others held in custody within the prison service. 

[43]      Against the background of these considerations, it is the case that the Scottish Government has a stated policy designed to achieve the objective of a smoke-free prison service as part of a change in culture in relation to smoking in Scottish society generally.  That is apparent from the content of primary legislation, published policy documents, and, specifically in relation to prisons in Scotland, from measures put in place in order to reduce the harmful impact of ETS.  On the basis of the documentary productions to which reference was made in the course of this case, the incremental implementation of the policy has continued throughout the period beginning in about 2005 until the present day. 

[44]      That being so, the situation within the Scottish Prison Service, in this regard, is not comparable to the circumstances considered in the case of Napier in which, despite the capacity and resources to do so, no relevant action by the relevant authorities, was taken.  I accept that, contrary to the position in Napier, the relevant authorities in Scotland are alive to the issue raised by the petitioner and are seeking proactively to address it. 

[45]      On the evidence presented, the manner of the development and ongoing implementation of government policy has necessarily been informed by the need to have regard to the relevant considerations involved in the proper management of prisoners.  The petitioner may complain about what he regards as the slow pace of change, and point to a number of alternative options as to how matters might be taken forward, but, as indicated in the affidavits of Ruth Parker and James Kerr, there is another justified consensus to the effect that the implementation of the government’s stated policy is not a straightforward task.  In circumstances where there are documented doubts as to the efficacy of some possible measures, and concerns about the risks presented to the good management of prisons by others, I consider that it is reasonable and appropriate, in the whole context of the matter, to seek to avoid the possible disruption which might result from acting speculatively or precipitously by putting in place apparently simple measures which have a capacity to fail, and instead properly to research the issue of how best to combat the harmful effects of ETS by reference to relevant evidence and considered evaluation.  That is the process in which the Tobacco Strategy Workstream Group is currently engaged.  In circumstances where it might be thought that there are a number of means of executing the stated policy, all of varying efficacy, the benefits of a measured approach would appear to be consistent with the need to have regard to all material considerations. 

[46]      The facts of this case indicate that while it is clear that the respondents are alive to the petitioner’s concerns, nevertheless the appropriate means of addressing them necessarily requires consideration of the likely consequential greater impact on the entire prison service, and in particular the likely effect on the whole prison population and the management of the prison estate. 

[47]      That being so, having regard to the criteria of Wednesbury reasonableness, and allowing for the impact of the whole relevant context, in particular having regard to the fact that the implementation of the Scottish Government’s plans to deal appropriately with the issue of ETS is palpably underway but constrained in its progress by the need properly to take into account all material considerations, I am not persuaded that the exercise of the respondents’ powers to detain the petitioner, in the circumstances in which he currently finds himself, unfortunate and undesirable though that situation may be, is unreasonable and therefore unlawful or that it was or is being implemented on a basis which can be said to be otherwise irrational.  I am persuaded, rather, that it does indeed fall within the range of reasonable responses to the prevailing situation. 

[48]      For the reasons I have stated, I am not persuaded that the detention of the petitioner, in the conditions in which he is currently held, is as unreasonable as the detention under segregation considered in Shahid was disproportionate.  In any event, had I considered it necessary to determine the legitimacy of the respondents’ decision by reference to the proportionality principle or, alternatively, by reference to the need for cogent justification to be established, I would have reached the same decision.

 

Conclusion
[49]      In the result, therefore, I repel the petitioner’s plea in law and sustain the respondents’ third and fourth pleas in law and refuse the petition.  I reserve meantime all questions of expenses.