Smith, R (on the application of) v Secretary of State for Justice & Ors

Exposure to second-hand smoke in prison does not automatically engage Article 8. The court must assess whether the particular exposure reaches the minimum level of severity required for interference with private life, considering its intensity, duration and effects in context. A short period of passive smoking will not necessarily meet that threshold. Article 14 cannot provide a viable route where the alleged difference in treatment lacks a sufficiently analogous comparator and the complaint receives only tenuous support from Strasbourg authority. Questions of proportionality and justification arise only after engagement and interference have been established.

The appellant, a non-smoking prisoner, was required for seven days to share a cell with a prisoner who smoked. He challenged the Secretary of State’s smoking policy and G4S’s operational decision under Articles 8 and 14 of the Convention, contending that the arrangements exposed him to second-hand smoke and discriminated against prisoners compared with members of the public.

Mostyn J refused permission to apply for judicial review, holding that Article 8 was not engaged and leaving proportionality unexamined. The Court of Appeal granted permission to appeal and permission to apply for judicial review. The central issues were whether the exposure reached the threshold for Article 8 interference, whether Article 14 was engaged, and whether proportionality and justification required consideration.

1. Appeal dismissed. The refusal of permission to apply for judicial review was upheld. Permission to appeal was refused and costs orders were made.
2. Exposure to second-hand smoke may potentially engage Article 8, but the question depends on the facts and circumstances. The court must determine whether the exposure reaches the minimum level of severity required for interference, having regard to its intensity, duration and physical or mental effects. The court applied the approach reflected in Fadeyeva v Russia [2007] 45 EHRR 10.
3. The appellant’s exposure was relatively short and lacked the intensity, duration and effect necessary to interfere with Article 8 rights. The Strasbourg decisions relied on by the appellant concerned materially more extreme or different circumstances. Benito v Spain (APP 36150/03, [13/11/2006]) and Hristov v Bulgaria (APP 36244/02, [16/10/2008]) did not establish that Article 8 was engaged on comparable facts.
4. Article 14 did not assist the appellant. Although the issue could fall within the broad ambit of Article 8 independently of a finding of Article 8 interference, the analogy between prisoners and the general public was unpersuasive in this context. Shelley v United Kingdom (APP 23800/06, [14/01/2008]) provided only tenuous support.
5. It was unnecessary to determine proportionality or justification because the threshold requirements of engagement and interference had not been crossed. The court nevertheless disagreed with Mostyn J’s view that considering those matters would be improper merely because the issue was political or under policy review, observing that formidable obstacles appeared to confront the appellant on proportionality.

• Court of Appeal (Civil Division): The appeal from the Administrative Court was dismissed. The court upheld the refusal of permission to apply for judicial review, refused permission to appeal, and ordered the appellant to pay the respondents’ reasonable costs, subject to the stated statutory qualification.
• Administrative Court: Mostyn J refused permission to apply for judicial review, concluding that Article 8 was not engaged and not separately determining Article 14. He did not assess proportionality.
• Permission stage: Beatson LJ refused permission to appeal on the papers. Sir Stephen Sedley later granted permission to appeal and permission to apply for judicial review, directing that the matter remain in the Court of Appeal.