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« Can NHS trusts in England fine smokers for lighting up on hospital grounds? | Main | My brush with Vice and its help to quit smoking project, Change Incorporated »
Friday
Jul122019

Hospital declines to reveal under what law it can fine smokers for lighting up

On Wednesday I wrote to Sandwell and West Birmingham Hospitals NHS trust asking under what law or by-law they could fine smokers £50 for lighting up on the grounds.

It followed this report in the Birmingham Mail (Hospital bosses: If you smoke on our site, even in your car, we will fine you £50).

My email read:

Dear Sirs,

It has been reported that Sandwell and West Birmingham hospitals NHS trust is to fine people caught smoking on hospitals grounds. This will include people caught smoking in their own cars if they are parked on the relevant property.

'Patrols,' we are told, 'will be out and about dishing out penalties on two hospital sites.'

I would be grateful if you could advise me on the relevant law (or by-law) that allows Sandwell and West Birmingham hospitals NHS trust to issue fines to people caught smoking on the grounds of the hospitals, or in their own cars.

I look forward to an early response.

Your faithfully,

This afternoon I got this reply:

Dear Mr. Clark,

In relation to your recent query please find the below information. This information has also been put on our website.

Kind regards,

The Communications Team
Sandwell and West Birmingham NHS Trust

Enforcing our smokefree ban

We want and expect people to stop smoking on our sites. All of our staff are encouraged to ask smokers to stop smoking on site. Additionally we have smoking wardens and security officers on regular patrols.

We are enforcing our smokefree ban by fining people who contravene our smokefree site status. This fine is maximum of £50 and £30 if paid within 15 days of notification.

On being seen smoking on our grounds, smoking wardens will request that the individual stops smoking and explain our smokefree policy.

Should the individual refuse and persist in smoking, the warden will take the name and address of the individual and will check their identity. The Trust will then issue then with a letter with:

• The date, time and location of being seen smoking
• An invoice
• Information about how to appeal
• A discount to £30 if they pay within 15 days
• Information on how to pay
• The Trust will then continue to follow up notifications of fines to the individual’s address should they not pay within 29 days of receiving the letter.

The Trust employs directly smoking wardens and security staff plus an external provider, accredited by the Community Safety Accreditation Scheme (CSAS).

I have replied to that email as follows:

Dear Comms Team,

Thank you for your response. As you are no doubt aware, it doesn't answer my question.

I asked whether you could advise me of the relevant law (or by-law) that allows Sandwell and West Birmingham hospitals NHS trust to issue fines to people caught smoking on the grounds of the hospitals, or in their own cars.

In other words, under what law or by-law does Sandwell and West Birmingham hospitals NHS trust have the power to enforce a smoking ban and fine those who ignore it?

I would be grateful for an answer to that simple question.

Yours faithfully,

If there was a law or by-law that allow them to fine people for smoking on hospital grounds surely they would cite it?

If not, how can they be so confident they have the legal right to do so?

It beggars belief that the trust hasn't taken legal advice. Perhaps they'd like to share it with us?

Btw, I have raised the matter with the Birmingham Post but they're not interested.

No wonder local papers are dying on their arse if they won't follow up the most basic stuff like this.

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Reader Comments (6)

By what right or law do they take a smoker's name and address? Just walk away and ignore them. If ever confronted in such a situation I would probably put my cig out, unless in my car, as I detest unnecessary aggravation. But getting my name and address would require them to contact the DVLA. And I would not pay. At my age I care little what pseudo laws they throw at me. If we smokers all gave them two fingers perhaps this persecution would stop.

Friday, July 12, 2019 at 17:27 | Unregistered Commentergrumpybutterfly

Making an unwarranted demand for money with menaces is a serious indictable criminal offence. Perhaps the wardens and management should reflect on their potential criminal liability and seek, at their own expense, legal advice on that and the kindred offences of fraud from a competent solicitor.

Friday, July 12, 2019 at 22:27 | Unregistered CommenterPaul Marland

Without an act being codified at law (by statutory instrument, delegated legislation, or case decision) there is no violation (or crime), You cannot enforce a law that does not exist.

By-laws can be enacted by a local authority only if that action has previously been approved by an Act of Parliament (or devolved legislature). This approval is known as delegated legislation and bylaws enacted this way do not come into effect until they are approved by the government department that oversee the delegation of regulations. In any event, the legal source authorizing the by-law should be available to the public since violations of a by-law create criminal offices that are prosecuted in Magistrate's Courts. (Smoking on hospital grounds in an offence in Northern Ireland and Scotland and proposed for Wales; but it is still not illegal to smoke on hospital ground in England.)

It seems to me that the Hospitals Trust may be trying to enforce a pseudo-'fixed penalty notice' that does not create a crime. A fixed penalty notice is not a fine and a person that receives one can opt to have the case card in magistrate's cost rather than paying the penalty. In this case, there would still have to be an authorizing instrument (such as a statutory instrument or delegated legislation).

Without this authorization this 'fine' scheme sounds more like intimidation and extortion — especially since they will not disclose the source of their authority to act. Some 'private’ and non-public entities issue ‘private parking tickets' that masquerade as fixed penalty notices in order to intimidate and coerce alleged violators. These private actions can't be enforced without seeking action from a competent court.

I recommend contacting a solicitor and strong consideration of challenging their administrative fiat.

Saturday, July 13, 2019 at 7:46 | Unregistered CommenterVinny Gracchus

On the contrary, be cooperative and provide them with your name and address. Let them spend time and money on sending invoices, on sending reminders, even sending someone over to your place asking for a donation to their cause... and just not pay. What will they do, take it to court?

The principle here make sure they spend much more money on it than the absolute zero they will be collecting from it and the harassment will stop.

Saturday, July 13, 2019 at 9:23 | Unregistered CommenterLVD

If I still worked in local newspapers and this story was pitched to me, I would definitely look into it. If my news editor told me not to I would question why only one side of the story is permitted to be told and remind him or her that journalists have a duty not to take sides.

It is because local papers have become mouthpieces for local quangoes and councils that they are not worth working for nor worth defending anymore.

It is a shame that journalism as a profession has become so disappointing and nothing more than a messenger from the healthist elite to the ignorant plebs.

It has been a very long time indeed since any newspaper could realistically call itself the voice of the people.

I fear the oppressive and fascist future that my grandchildren are being groomed to accept. They will never know the value of freedom which will be an unknown concept to them, partly because of the degredation of journalism along with the imposition of more authoritarianism.

I would rather they grow up with fat people and smokers than those fascists with unhealthy opinions about what makes a perfect human specimen.

Saturday, July 13, 2019 at 14:44 | Unregistered CommenterPat Nurse

Afternoon Simon,
I wrote a rather lengthy letter annihilating all their rather pompous assumptions and also pointed out the pitfalls of what they were attempting to bully people into doing. So far there has been no response and I very much doubt there will be as nothing I wrote would have pleased them!
Remember Swindon trying this retarded trick? Their 'wardens' lasted a fortnight before resigning from the abuse they received and these idiots will be exactly the same. It would be interesting to arrange for 50 smokers in Sandwell to 'march on parade' in the hospital grounds whilst smoking - just to see what our brace of superherowardens would do! :) :) :)

Monday, July 15, 2019 at 17:27 | Unregistered CommenterPhil Johnson

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