A prisoner concerned about exposure to “second-hand” smoke has expressed his disappointment after losing a Supreme Court battle to make illicit lighting up in jails a criminal offence.

Paul Black, who has serious health problems exacerbated by tobacco smoke, said: “Throughout this case, I simply wished non-smoking prisoners and prison staff to have the same level of protection from the risks of second-hand cigarette smoke as non-smokers living in the wider community.”

In a unanimous ruling on Tuesday, five justices at the UK’s highest court concluded that a ban prohibiting smoking in most enclosed public places and workplaces does not apply to Crown premises, including state prisons.

President Lady Hale announced that an appeal by Black. following his defeat at the Court of Appeal last year, was being dismissed “with considerable reluctance”.

Black’s solicitor, Sean Humber, head of the prison law team at Leigh Day, said the decision has “far wider implications than simply the issue of smoking in prisons”.

He added: “It confirms that thousands of Government properties, including, for example, courts and Jobcentres, are not covered by the provisions of the Health Act prohibiting smoking in enclosed places.

“While many of these buildings even have signs saying it is against the law to smoke in them, these turn out to be incorrect.

“In light of this, the Government must now take urgent action to change the law to properly protect the millions of people who work, live or visit these properties.”

Black, a sex offender serving an indeterminate sentence at HMP Wymott in Lancashire, launched legal action complaining that prison smoking rules were being flouted and should be legally enforceable.

The case centred on the 2006 Health Act which places restrictions on smoking in public places and workplaces, making it a criminal offence to smoke in an unauthorised place and also an offence for those in charge of the premises to turn a blind eye to the smoking.

Black won a High Court declaration in 2015 that the ban, which came into force in 2007, must also be applied to state prisons and other Crown premises in England and Wales.

Paul Black is an inmate at HMP Wymott in Lancashire (Peter Byrne/PA)
Paul Black is an inmate at HMP Wymott in Lancashire (Peter Byrne/PA)

But appeal judges later allowed a Government challenge, ruling that the Crown was not bound by the Act.

The Supreme Court has now held that Parliament must have intended that the Crown should not be bound by the ban, “since it would otherwise have made express provision for it in the Act”.

Lady Hale said it was an issue which “affects all those residing in, employed to work at, or visiting any Crown premises, including prisons”.

She said: “It might well be thought desirable, especially by and for civil servants and others working in or visiting Government departments, if the smoking ban did bind the Crown.

“But the legislation is quite workable without doing so.

“It cannot be suggested … that a major plank of the Act’s purpose would remain unfulfilled if the Act did not bind the Crown. The Crown can do a good deal by voluntary action to fill the gap.”