By Tobias Thienel
Sorry for the extreme delay: I missed this one, perhaps because of the less than catchy title. It’s the judgment of the English High Court in R (G) v Nottinghamshire Healthcare NHS Trust [2008] EWHC 1096 (Admin) of 20 May this year. Mind you, as headings go, this one would seem to come in at the lower end of most people’s scale of surprise. The conclusion that there is no human right to smoke would seem patently obvious. But do bear with me; there has been no suggestion in this English case that a right to smoke has ever been laid down in any instrument of English or international law; it hasn’t. That much really is obvious. Instead, the argument proceeds from Article 8 ECHR, the right to respect for a person’s private life (and also their family life, home and correspondence, none of which matters here), which is ‘not susceptible to exhaustive definition’ (Pretty v United Kingdom, para 61). More to the point, the right to respect for one’s private life has been held to protect, inter alia, a person’s physical and moral integrity (see ibid and Bensaid v United Kingdom, paras 46-47). It may not be entirely implausible that to ban smoking is to interfere with a smoker’s physical and psychological integrity, if the ban prevents them from smoking at all. Justification of the interference might be another matter, but Article 8 would have then been engaged, if nothing more. In the case of G itself, the ban on smoking was complete. The claimants were detained mental patients in a secure unit, and were not allowed to go outside to smoke. They were and are still allowed to smoke in one room in their facility, but that permission is to expire on 1 July. From then on, the unit will be entirely smoke-free, and the claimants will be prevented from smoking at all. They will, in other words, be forced to quit. I understand that this can be an unpleasant experience. And still, the High Court (Pill LJ and Silber J) dismissed the claim, holding that Article 8 was not engaged. Continue reading