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Jailhouse crocks

The (Glasgow) Herald has this exclusive story: Passive smoking ‘victims’ to challenge prison service.

Prisoners forced to share their cells with smokers have lodged compensation claims against the Scottish Prison Service.

Tony Kelly, the lawyer for Adelbaset Ali Mohmed al Megrahi, the man convicted of the Lockerbie bombing, has, in the past, brought a number of successful cases on behalf of prisoners over issues such as slopping out.

He told The Herald that he was now pursuing cases on behalf of about half-a-dozen Scottish prisoners or former inmates who were non-smokers but had been exposed to tobacco smoke through being required to share a cell with smokers.

The cases were already live, he said, and the first of these would come to court within a matter of months.

I accept that if you are a non-smoker it might not be very nice to be stuck in a small cell with others who are smoking, but a direct cause of ill health?

One would expect the former inmates, at least, to have to prove that their health has suffered as a result of sharing a cell with smokers. Yes, there have been out-of-court settlements (a cheaper option for employers than going to court, even if they win), but I am not aware of a single case in the UK where someone has proved successfully in court that their illness was caused by other people's tobacco smoke.

For that reason alone this could be interesting. On the hand, it wouldn't surprise me if the Scottish Government chose not to fight the issue and agreed instead to burden the taxpayer with the cost of compensation. After all, to do otherwise would defeat their argument that passive smoking is a serious health risk, wouldn't it?

Update: Brian Monteith, who brought the story to my attention, writes: "I think this will run and run. It is of course a direct consequence of governments lazily accepting junk science to justify their control freakery. Now they will have to pay for the mistake - only we pick up the tab in the long run."

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Reader Comments (23)

Time to fight this? It seems an oppurtunity to put in front of a judge all the research that throws doubt on the alleged dangers of passive smoke. If the judge accepts the case of the dangers of passive smoking is not proven - that'll liven things up! (I'd also happily contribute to a fund for this too)

Thursday, January 27, 2011 at 9:54 | Unregistered CommenterMark Butcher

I realise you're only quoting from another journalist (but you chose the quote of course) - but what relevance is there in referring to another of Tony Kelly's clients?

Thursday, January 27, 2011 at 9:55 | Unregistered Commentersimon (nsc)

Mark: if it's up to the Scottish Government to defend the case, I think Simon could be right. They could just capitulate. A judge can only go on the evidence that he is presented with, and what's the betting that the Scottish Government's evidence against the case won't be very sound?

Thursday, January 27, 2011 at 11:17 | Unregistered CommenterBelinda

The HSE should be brought into any Court Case, how would they explain this Operation Circular that was reviewed before the due date and all copies ordered to be destroyed.

"9 The evidential link between individual circumstances of exposure to risk in
exempted premises will be hard to establish. In essence, HSE cannot
produce epidemiological evidence to link levels of exposure to SHS to the
raised risk of contracting specific diseases and it is therefore difficult to prove
health-related breaches of the Health and Safety at Work Act. "

Thursday, January 27, 2011 at 12:14 | Unregistered CommenterEddie Douthwaite

That depends if they want to open themselves up to massive claims from all over, Belinda. If this goes through what happens next? or what position are the Scottish Parl. in if they just capitulate? I feel they have no option but to defend even if they end up hypocrites. This is one of the main things they were trying to avoid in imposing a ban - litigation - and it's not worked.

I agree with Mark, this is an opportunity to bloody nail this fraud. I bet ASH aren't too happy about it whatever they may say. For the first, public, time they have to countenance the fact that they could lose.

Thursday, January 27, 2011 at 12:29 | Unregistered CommenterFrank

Hadn't thought of that one Frank ... possibly that's why Labate lost her case.

What's the betting we will hear the words 'sending the wrong message' if the prisoners lose?

Thursday, January 27, 2011 at 12:33 | Unregistered CommenterBelinda

Good luck to the solicitor and the Lags. I think it is really funny and look forward to hearing about smokefree prisons being built. Maybe a smokers wing!

If smoking is as dangerous as the Tartan Taleban are forever saying, these prisoners are right to be concerned about their health and deserve protection. If it is all a lie are they going to admit to that?

We have seen that prisoners are entitled to vote under Human Right's legislation so they must be able to enjoy protection from the poisonous fumes of their fellow inmates. I know Simon says that the prisoners need to show their health has suffered but I disagree. Given the bulk of junk science bandied around it is obvious that the health will suffer in the future even if it is not apparent now. Guaranteed win for the Lags.

Tartan Taleban hoist by their own Petard and I love it.

Thursday, January 27, 2011 at 12:53 | Unregistered CommenterMichael Peoples

Very interesting. I wonder if we will see a "claims of harm are manifestly unfounded" judgement, as happened in that EU case a few years back. (After all, we know the evidence is shaky, to put it lightly). And if so, I wonder if it will be able to undermine the foundations of the ban (i.e public health) in some way.

I imagine they'd just like to pay them off so the SHS lies aren't exposed. But as has already been mentioned, that would trigger a flood of claims. Hmmm.....

Thursday, January 27, 2011 at 15:15 | Unregistered CommenterMr A

And who is representing these fine gentlemen? Who is providing their scientific advice? I've long maintained that all it needed was for the vidence to be heard in a court of law, so weak is the antis' case. This could be the chance to highlight the lies once and for all.

Thursday, January 27, 2011 at 15:17 | Unregistered CommenterMr A

They'll win by fair means or foul - they don't even need "scientific" evidence any more to prove anything they say.

I think we will all be laughing on the other side of our faces soon.

If the Lockerbie Bomber's lawyer got him out of jail then there isn't much hope that anyone is on our side is there?

No - I won't be complacent and trust to right and wrong - it's all turned upside down on this issue. Right IS wrong and Wrong IS right. The truth simply doesn't matter as far as this issue is concerned.

Thursday, January 27, 2011 at 15:29 | Unregistered CommenterPat Nurse

'If the Lockerbie Bomber's lawyer got him out of jail then there isn't much hope that anyone is on our side is there?'

I beg to differ on your statement Pat. The case against his client was going to appeal and it was almost certain that he would get at least a new trial if not acquitted entirely. The Scottish government got him out of the country before the truth could be known and his release meant all the appeals had to stop.

What this shows is the Scottish Government have a track record of suppressing the truth but also this is a very good solicitor. He knows that they will back down if they have to admit the truth as they did with al Megrahi.

The Scottish Government will pay up because it does not come out of their pocket. This solicitor knows this and he does not need to produce any evidence but base his case on the words and deeds of the very people he is suing.

Clever and exactly how he got al Megrahi released.

Thursday, January 27, 2011 at 16:24 | Unregistered CommenterMichael Peoples

@ Pat.

Don't be so pessimistic! Chinks are appearing in the armour. Holes are appearing in the bucket.
As Simon pointed out about a week ago, when ASH were going on about smoking in cars, they did not actually call for a ban on smoking in cars, then there is the Imperial Tobacco court case, and now we have this, to say nothing about resistance in Holland, Spain, Germany, Greece and Spain. Tobacco Control's carefully engineered plans are beginning to fall apart. That is the important thing. For the sake of our children and our grandchildren, we must continue the struggle for freedom

Thursday, January 27, 2011 at 20:30 | Unregistered CommenterJunican

I have just read the article in the Glasgow Herald. W/hen I read it for a second time, I noticed something odd.

The lawyer for the prisoners, Tony Kelly, seems to be basing his case in a European Court ruling regarding a claim by a Romanian prisoner that his health was damaged by being locked up with three smokers. But read this quote:

""The European court ruled that it was incumbent on a state’s prison authority to ensure respect for prisoners’ dignity, regardless of the logistical or financial difficulties that might be involved, and awarded Elefteriadis €4000 (£3450) in compensation.

Mr Kelly said he anticipated the cases he was bringing would be successful, regardless of the European ruling.""

Do you see it?

First, why is a claim for harm due to being with smokers described as a prisoner's dignity? Is that not very strange? But the really weird thing comes in the next sentence:

""Mr Kelly said he anticipated the cases he was bringing would be successful, regardless of the European ruling.""

So does that not suggest that something has been missed out of the report? Could it be that the court DID NOT find in the prisoner's favour with respect to the smoking claim, but for some other reason to do with dignity? The quote above would certainly make more sense if that were the case.

If I am right, and the European Court did not find in the prisoner's favour regarding the smoking aspect of his claim, then a precedent has been set which seems to absolve smoking. In which case, I would have thought that the Scottish Gov would have not option but to contest the case. Are the fates moving in our direction at last? This case needs to carefully followed.

Thursday, January 27, 2011 at 21:26 | Unregistered CommenterJunican

Well, well, well! It’s just as the legendary Leg-Iron has so often said – the Righteous always end up hoist by their own petard in the end. Tangled webs and all that …..

How nice to see anti-smokers squabbling amongst themselves in such a satisfying way!

Thursday, January 27, 2011 at 22:54 | Unregistered CommenterMisty

This is the relevant judgement (in French)|%20romania%20|%2038427/05&sessionid=65643091&skin=hudoc-en

Thursday, January 27, 2011 at 22:58 | Unregistered CommenterBelinda

I didn't read it that way Junican: I read that they consider exposing someone to smoke as undermining his dignity. Uncomfortable and avoidable hardship.

As for 'regardless of the European ruling', I read 'even if you don't take the European ruling into account' or 'even without the European ruling' i.e. there is enough evidence to win.

Thursday, January 27, 2011 at 23:06 | Unregistered CommenterBelinda

@ Junican Good points

I think you should leave similar thoughts here

Thursday, January 27, 2011 at 23:33 | Unregistered CommenterDave Scott

Hello Belinda.

Fortunately my French is still in reasonably good condition, and I was able to read the judgement quite well. I got the impression that some of the prosoner's claims were not allowed for time reasons etc etc, but that the main judgement was indeed concerned with 'his dignity' within the right not to be tortured etc.

However, I found an English summary!

If you click on the URL you have provided, you get the French judgement in full.

Now, just above the actual text, you will see a line of links, one of which is 'Go To'. Click on that.

On the page revealed, on the right hand side, you will see 'Press Releases'.
Click that.

The top item is a press release about this case which is a reasonably detailed summary of the facts.

Even that is not as clear as it could be, but it seems to me that the Court found for the prisoner in respect of 'his dignity' in that the prison authorities did not do enough to separate him from the smoking, which he did not like and which could be harmful. Here is a specific sentence:
""The overcrowding in Rahova Prison – confirmed by the CPT2 in the reports on its visits – in no way dispensed the authorities from their obligation to protect the applicant’s health.""

Note the words '..dispensed the authorities...'

That para goes on:
""The fact that the applicant had subsequently been placed in a cell with a non-smoker and was now in an individual cell in a different prison was not due to the objective criteria laid down in the legislation but to a combination of circumstances (the existence of sufficient capacity in the prison at the particular time), and there was no indication that the applicant would continue to be held in such favourable conditions if the prison were to be overcrowded in the future.""

It seems to me that that para is complaining about Romania's legislation re prisons. (At the moment, the EU cannot 'legislate' - it can only recommend)

One more thing. The court upheld his complaint about having to wait in his Romanian courts in a room where people smoked, BUT ONLY BECAUSE BEING IN A ROOM WITH SMOKERS WAS AGAINST DOCTOR'S ADVICE.

We must carefully observe that the European Court DID NOT venture an opinion on whether or not his health problems were caused by the tobacco smoke.The nearest that they came to it was this:

""While his health had stabilised between 2003 and 2005, the pulmonary fibrosis for which he had been under observation for several years was a chronic illness. The authorities had therefore been under an obligation to take measures to safeguard his health by separating him from prisoners who smoked; this could have been done, given that there was a cell in the prison containing only non-smokers.""

And this:

""Daily exercise in the prison yard, sports activities and a relatively large cell which was not overcrowded and had natural light and ventilation were not sufficient to offset the harmful effects of the second-hand smoke to which the applicant had been subjected as a result of being accommodated with smokers.""

Note that these comment were dependent upon the fact that his serious condition had by then been diagnosed.

The last paragraph is a bit weird. It seems to contradict itself. But the critical word in the paragraph is the fourth word in - 'had'. That para refers to previous judgements by the Romanian courts and not the European court. Essentially, that para is saying that people cannot be refused compensation merely because records regarding their health did not exist (in prisons).

So we can see why the phrase: 'regardless of the European ruling' appeared in the article. The EU Court DID NOT say that his health problems were caused by the tobacco smoke.

Friday, January 28, 2011 at 1:04 | Unregistered CommenterJunican

@ Dave Scott.

Thanks for that.

I tried to do what you suggested, Unfortunately, J J 's character requirements and his security overwhelmed me. Please feel free to transfer my above comments to has site if you know how to.

Friday, January 28, 2011 at 3:04 | Unregistered CommenterJunican

Will do Junican

Friday, January 28, 2011 at 5:19 | Unregistered CommenterDave Scott

It will depend on what the claim states. Hopefully, it's harm to health.

Friday, January 28, 2011 at 8:18 | Unregistered CommenterFrank

“It is common sense,” he said. “The Government introduced a ban on smoking in public places because of the harm caused by second-hand smoke, and published research and reports to justify that.
“Given the Government’s own research and publications, it is established that harm has occurred."

I don't see how they can wriggle out of that one.
After all, they rejected all evidence to the contrary and can't now mount a defence.

I think that they will pay up and try to keep it quiet, but of course, then they will be liable for every cough, sneeze or sore throat an ex-prisoner gets as well as all those diseases that anyone can get, but are now considered "smoking related", on their own evidence.

Bearing in mind that this may well now apply to all the 192 countries who signed the FCTC and accepted the science, it could get very interesting.

As ASH stated in 2004 the "date of guilty knowledge" has now passed.

Friday, January 28, 2011 at 9:19 | Unregistered CommenterRose2

What about the drugs that are rampant in prisons?
I dont hear the inmates complaining about that.
Is this because Big Brother thinks they are less harmful or maybe its because they know they will never be able to control them.
Or is it just down to the butts and smell issue again.
I guess it just doesnt look right and brings down the tone to see the crims smoking in plain sight.
Not very PC dont you know.

Monday, January 31, 2011 at 13:30 | Unregistered Commenterann

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