Foster, R (on the application of) v HMP Highdown

A Young Offender Institution may treat tobacco as a privilege within its approved incentive and earned privileges scheme and may withdraw it as a disciplinary punishment. A short tobacco ban is not irrational or disproportionate merely because withdrawal symptoms may result, particularly where the regime permits individual representations and access to nicotine replacement therapy where appropriate.

Smoking does not engage Article 8 of the Convention in this context. A short disciplinary ban does not ordinarily engage Article 3. Article 14 cannot apply without a relevant connection to another Convention right, and no relevant discrimination arises between smokers, non-smokers, and prisoners participating in smoking-cessation programmes. Section 47(1) of the Prison Act 1952 gives the Secretary of State a broad discretion and does not require detailed guidance on tobacco withdrawal.

The claimant, detained in a part of HMP Highdown designated as a Young Offender Institution, pleaded guilty to abusing an officer. The adjudicator imposed several punishments, including seven days’ loss of tobacco and canteen privileges.

He sought judicial review of the punishment and alleged failures by the Secretary of State and the prison authorities concerning the legal power to withdraw tobacco, applicable guidance, proportionality, Articles 3, 8 and 14 of the Convention, and the scope of the rule-making power under section 47(1) of the Prison Act 1952.

1. Outcome. The claim was dismissed in its entirety. The incorrect citation of the prison disciplinary rule was a technical breach, because the rule applicable to Young Offender Institutions was in identical terms and caused no prejudice. Quashing the adjudication would serve no useful purpose, although the technical breach warranted declaratory relief.
2. Power to withdraw tobacco. Under rule 21.2 of the Young Offender Institution Rules 2000, smoking and possession of tobacco were permitted only in accordance with the Secretary of State’s directions. Rule 6 established systems of privileges, and tobacco was expressly listed as a privilege in schedule 3 of the institution’s incentive and earned privileges scheme. The Governor therefore had power under rule 60 to withdraw tobacco as a punishment.
3. Guidance and proportionality. The guidance relied upon did not impose a mandatory duty to provide nicotine replacement therapy. The penalty was short, the claimant had not raised relevant personal circumstances at the adjudication or by appeal, and the Governor’s evidence showed that the regime could respond to individual cases. The punishment was neither irrational nor disproportionate, and there was no duty actively to consider nicotine replacement therapy on the facts.
4. Convention rights. Applying N v the Secretary of State for Health, E v the Nottinghamshire Health Care NHS Trust [2009] EWCA Civ 798, smoking did not fall within Article 8, even where smoking had been permanently prohibited in a closed institution. In any event, the short disciplinary ban was justified. The withdrawal of tobacco also fell well short of the severity required for Article 3. Article 14 was therefore not engaged; alternatively, the relevant comparator groups were not in sufficiently similar situations and there was no relevant discrimination.
5. Rule-making power. Section 47(1) of the Prison Act 1952 conferred a broad discretion. It required rules concerning discipline and control, but did not require the Secretary of State to issue detailed rules or guidance dealing specifically with tobacco withdrawal.