R (Smith) v Secretary of State for Justice  EWCA Civ 380 (1 April 2014)
The England and Wales Court of Appeal has found that exposing a prisoner who is a non-smoker to second hand smoke for seven days by forcing him to share a cell with a smoker did not amount to interference with his rights under either article 8 (the right to privacy) or article 14 (prohibition of discrimination) of the European Convention on Human Rights.
In March 2012 the appellant was a convicted sex offender serving a sentence at HMP Birmingham, a prison which had been operated by G4S since 1st October 2011.
The sex offenders in the prison, including the appellant, were transferred to a different wing for their protection from other prisoners. These prisoners were then allocated to their particular cells based on three criteria: (i) safety risks; (ii) the need for elderly prisoners to be with able bodied prisoners (because the former could not always access the top bunk); and (iii) whether the prisoners were smokers.
After the above criteria were employed, it ended up that from 21 March–28 March 2012 the appellant shared a cell with a prisoner who smoked. The prison authorities were aware that the appellant was a non-smoker and that he did not wish to share a cell with a smoker.
The question before the Court was whether forcing the appellant to share a cell with a smoker was a breach of the appellant's Convention rights to respect for his private life (article 8 of ECHR) and to equality of access to such rights (article 14 of ECHR).
The Court observed that before the parties contested practical issues such as proportionality, operational needs and safety concerns, the appellant had to demonstrate that the interference with his article 8 and/or article 14 rights exceeded a certain threshold of severity (the Court did not elaborate on what this threshold was). Ultimately, the Court found that the interference with the appellant's rights did not cross this threshold and therefore that it was unnecessary to consider questions relating to proportionality and justification.
Article 8 issue
The appellant relied on the case of Fadeyeva v Russia  45 EHRR 10 to demonstrate that his rights under article 8 had been contravened: this case involved toxic emissions from an industrial plant, which the State knew about and was able to prevent or reduce. As a result, the State was subject to an obligation under article 8. However, the Court stated that Fadeyeva did not assist the appellant's argument because the victims in that case had contracted respiratory and skin diseases and, as a result, the harm caused was "in a wholly different league" to the exposure of the appellant to second hand smoke for a week. Accordingly, the Court concluded that the interference with the appellant's rights under article 8 was not of a "sufficient level of severity" to constitute a breach of those rights.
However, the Court did recognise that forced exposure to second hand smoke is capable of constituting interference with the rights of an individual under article 8, but was adamant that whether it in fact did so must be considered "in light of the facts and circumstances of the case." In this instance, the "intensity, duration and effect" of the appellant's exposure were too minor to constitute interference with his rights under article 8.
Article 14 issue
The appellant argued that his rights under article 14 had been interfered with because his being forced to share a cell with a smoker amounted to discrimination between non-smokers in prison and non-smokers in society.
The appellant referred to Shelley v United Kingdom APP 23800/06 [14/01/2008], a case in which the failure to set up a needle exchange programme in prison was challenged as a violation of articles 8 and 14, considering that such exchanges were available in wider society. Of significance to the appellant's case was that even though the article 8 argument failed in Shelley, the court "was prepared to treat the complaint as falling 'in a wide sense' within the ambit of Article 8 and thus went on to consider Article 14."
However, in this instance, the Court concluded that Shelley did not assist the appellant's case for two reasons: first, because of the lack of consensus among member states on whether exposure to passive smoking can amount to an interference with Convention rights, "save in cases where the facts are considerably more extreme;" second, while in Shelley the court viewed the position of prisoners and the general public to be analogous, the Court in this instance did not necessarily agree with that view considering that 80 percent of prisoners are smokers (a much higher percentage than in the wider community).
Accordingly, the Court found that there was no interference with the rights of the appellant under article 14. It is worth noting, however, that in the Court's analysis of this issue it did consider being a prisoner to be a "status" under article 14 and therefore discrimination against such a group would be protected under that article.
This case demonstrates that a relatively minor interference with an individual's private rights will not necessarily be protected by article 8. While in this instance the court found that exposure of the appellant to second hand smoke for a week was not severe enough for him to invoke article 8, the Court did acknowledge that forced exposure to second hand smoke is capable of constituting such interference in more severe circumstances.
The Court's analysis of article 14 in this case suggests that the position of prisoners will not always be considered analogous to the position of individuals in wider society. As a result, an interference with a prisoner's rights may not automatically be considered an actionable violation simply because the same interference committed in wider society would be considered such a violation.
This decision is available online at: http://www.bailii.org/ew/cases/EWCA/Civ/2014/380.html
Jack Power is a lawyer at Allens.