G, R (on the application of) v Nottinghamshire Healthcare NHS Trust

Article 8 does not confer a general right to smoke or require those responsible for detained persons to provide smoking facilities. Whether smoking engages private or home life depends on the activity, the accommodation and the circumstances, including the degree of detention and security. A smoking restriction may pursue the protection of health and the rights of others and may be proportionate even where outdoor smoking is impracticable. Article 14 does not extend the ambit of article 8 where the underlying interest is too remote from its protected values. Section 3 of the Human Rights Act 1998 permits interpretation compatible with Convention rights, but cannot transform a plainly temporary statutory exemption into a permanent one or require a legislative scheme inconsistent with its fundamental features.

Three detained patients at Rampton Hospital challenged regulation 10(3) of the Smoke-free (Exemption & Vehicles) Regulations 2007, which ended the temporary exemption allowing designated smoking rooms in mental health units on 1 July 2008. They argued that the provision was incompatible with articles 8 and 14 of the Convention, unlawful under section 6(1) of the Human Rights Act 1998, or should be read under section 3 of that Act as permitting an exemption where outdoor smoking was not feasible. The third claimant separately alleged that the Trust had applied its policy inflexibly. The central issues were whether article 8 was engaged and, if so, whether the restriction was justified and proportionate.

1. Parliamentary material. The court could consider Hansard, consultation material and other background evidence when assessing the scope of article 8 and the proportionality of the measures. This was not an application of Pepper v Hart and did not permit the court to evaluate the legislative process. The Ministerial statements created no legitimate expectation and did not bind Parliament or the court.
2. Article 8. Article 8 protects physical and psychological integrity, personal development, autonomy, identity and private space, but its protection is not coextensive with absolute freedom of action. Preventing smoking did not, in the circumstances, adversely affect the claimants’ physical or moral integrity or other protected interests so as to engage article 8. The court rejected any absolute right to smoke wherever a person lived.
3. The engagement of article 8 depends on the nature of the activity, the accommodation and the circumstances in which the person lives. A distinction may be drawn between a private home, a care home, a prison and a high-security hospital. No general obligation arose to provide smoking facilities for detained mental patients. The court nevertheless accepted that rare cases might exist in which mental health required smoking facilities, and the Trust’s policy conferred a discretion to consider exceptional cases.
4. Article 14. Since the claimed interest did not fall within the ambit or core values of article 8, article 14 could not provide an independent route to a claim. The court was inclined to conclude that the status of detained patients in high-security mental hospitals was not the personal characteristic contemplated by article 14, although that issue did not need to be finally determined.
5. Section 3. Regulation 10 was plainly intended to provide a temporary exemption. Reading into regulation 10(3) an exception for cases where outdoor smoking was infeasible would remove or materially alter that fundamental feature and would be legislative rather than interpretative. Section 3 of the Human Rights Act 1998 did not authorise that result.
6. Article 8(2) and proportionality. If article 8 was engaged, the restriction was in accordance with law, pursued the protection of health and the rights and freedoms of others, and satisfied the proportionality inquiry in de Freitas v Permanent Secretary of Ministry of Agriculture etc. The objectives were sufficiently important, the measures were rationally connected to them, and the complete indoor ban was no more than necessary. Health evidence, protection from second-hand smoke, hospital conditions, security requirements, consultation, parliamentary scrutiny and the legislature’s margin of appreciation supported that conclusion.
7. The third claimant’s evidence did not establish that the Trust’s policy was unlawfully inflexible or that cessation had materially destabilised his mental condition. All claims were dismissed. Permission to appeal was refused. There was no order for costs, save for detailed assessment of the publicly funded costs.

First-instance judicial review proceedings. The judgment records no prior appellate decision.