Published online by Cambridge University Press: 02 January 2018
Legislation has been enacted in both England/Wales and Scotland which criminalises smoking in certain places. This paper uses these prohibitions as a way of exploring two prominent theories of criminalisation which were employed in the parliamentary debates on the legislation, namely legal paternalism and the liberal ‘harm principle’. The paper argues that the creation of these offences cannot be justified by paternalism, and that the risk of harm to non-smokers from ‘passive smoking’is a preferable justification. This latter rationale could be used in support of more extensive smoking prohibitions in the future. The paper recognises the desire of many to limit the use of the criminal sanction and concludes by suggesting that unwarranted criminalisation can only be avoided if legislatures proposing new offences clearly articulate their reasons for believing that the criminal law is the best mechanism for reducing or deterring the conduct at issue, and demonstrate that the behaviour cannot adequately be deterred by non-criminal measures.
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21. C.28, in force in Wales from 2 April 2007, and in England from 1 July 2007. The terms ‘smoking’ and ‘smoke’ are defined in s 1(2), and ‘smoke free place’ in s 2, of the Health Act 2006. ‘Smoking’ refers to ‘smoking tobacco or anything which contains tobacco, or smoking any other substance’.
22. 2005 asp 13. This came into force on 26 March 2006. See also the Prohibition of Smoking in Certain Premises (Scotland) Regulations 2006, SSI 2006/90. ‘Smoke’ and ‘smoking premises’ are defined in s 4(1) and s 4(2) of the Smoking, Health and Social Care (Scotland) Act 2005.
23. Health Act 2006, s 8(4), and Smoking, Health and Social Care (Scotland) Act 2005, s 1, respectively.
24. As defined in the Smokefree (Premises and Enforcement) Regulations 2006, SI 2006/3368.
25. Health Act 2006, s 2(1). Public places are regarded as ‘smoke free premises’ only when open to the public, unless they are also used as a place of work (see below n 26).
26. Ibid, s 2(2). The prohibition applies only to places of work which are used ‘by more than one person (even if the persons who work there do so at different times, or only intermittently)’, or ‘where members of the public might attend for the purpose of seeking or receiving goods or services from the person or persons working there (even if members of the public are not always present)’: Health Act 2006, s 2(2)(a) and (b). Exemptions are provided for in s 3 of the Act.
27. Smoking, Health and Social Care (Scotland) Act 2005, s 4(2).
28. Ibid, s 4(4). See also the Prohibition of Smoking in Certain Premises (Scotland) Regulations 2006, SSI 2006/90.
29. For details of European countries which have imposed a smoking ban, see the website of the European Public Health Alliance, available at http://www.epha.org/a/1941.
30. Scottish Parliament, Official Report, 28 April 2005, col 16520 per Rhona Brankin MSP.
31. Ibid, col 16521 (emphasis added).
32. Ibid (emphasis added).
33. Ibid, col 16474.
34. Ibid, col 16499.
35. Ibid, col 16507.
36. Hansard HC Deb, col 217, 29 November 2005 per Richard Taylor MP.
37. Hansard HC Deb, col 180, 25 November 2005 per Tim Farron.
38. The relationship between addiction and autonomy is discussed further below.
39. Hansard HC Deb, col 188, 25 November 2005.
40. Ibid, col 189 (emphasis added).
41. Royal College of Physicians Going Smoke Free: The Medical Case for Clean Air in the Home, at Work and in Public Places (London: RCP, 2005) p xiii.Google ScholarPubMed
42. Ibid, preface.
43. See the website available at http://www.ash.org.uk.
44. Office of National Statistics Smoking Related Behaviour and Attitudes 2002 (London: ONS, 2003)Google ScholarPubMed
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46. Husak, above n 3, p 151.
47. Ibid, p 152.
48. Ibid. Even if their jail terms included educational programmes, designed to help offenders to stop smoking, the potential benefits of such a regime would not outweigh the harm to autonomy caused by the state in depriving smokers of their liberty by incarceration.
49. Under the Scottish legislation, the maximum penalty for smoking in no smoking premises is a fine at level 3 on the standard scale (currently £1000): Smoking, Health and Social Care (Scotland) Act 2005, s 2(3). The English legislation allows the Secretary of State to set the appropriate fine level by way of regulation (Health Act 2006, s 7(6) and Sch 1). The Smoke Free (Penalties and Discounted Amounts) Regulations 2007, SI 2007/764 has set this at level 1 (£200). Other countries have adopted a different approach – in Jordan, eg, the penalty is a fine of 20 dinars (£19) or imprisonment (‘You can't ban smoking: it's a family pastime’The Week 29 May 2010 at 16).
50. Eg, on the first anniversary of the Scottish prohibition, it was reported that 70% of people supported the smoking ban: see the website available at http://www.scotland.gov.uk/News/Releases/2007/03/23130308.
51. I have specifically referred to ‘drivers’, rather than ‘passengers’, because one argument for the compulsory use of seat belts for passengers seated in the rear of vehicles is that failure to wear a seat belt endangers the lives of those sitting at the front of the vehicle.
52. See, eg, Feinberg, above n 11, pp 137–138.
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55. Perhaps the distress is felt to be too remote? But the criminal law does offer protection from quite remote harms, at times. For instance, I may not carry a 5 inch penknife in my rucksack, to safeguard against the remote possibility that I may use the knife to injure someone (see the Criminal Justice Act 1988, s 139 (for England, Wales & Northern Ireland), and the Criminal Law (Consolidation) (Scotland) Act 1995, s 49).
56. Schonsheck, above n 53, p 115.
57. Feinberg, above n 11, p 140 (original emphasis). See also Schonsheck, above n 53, p 141: ‘The liberal is not compelled by consistency to abandon victims in the street. The liberal can wholeheartedly support the care of victims; insurance programs can be implemented to indemnify other motorists, and the state’.
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59. Above n 5, pp 67–68. See also Ogus, A ‘The paradoxes of legal paternalism’ (2010) 30 Legal Studies 61 at 68: ‘...people often attribute an excessively high value to short term benefits and too low a value to longer term costs’.CrossRefGoogle Scholar
60. Ibid, at 67.
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63. Ibid, at 24.
64. Feinberg, above n 11, p 4.
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69. Royal College of Physicians, above n 41, p xvii.
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72. Paternalism has a role here: the fact that smoking is harmful to the smoker is an important basis for our judgement that it is not a valuable activity.
73. Section 87(1) of the Environmental Protection Act 1990 provides: ‘If any person throws down, drops or otherwise deposits in, into or from any place to which this section applies, and leaves, any thing whatsoever in such circumstances as to cause, or contribute to, or tend to lead to, the defacement by litter of any place to which this section applies, he shall...be guilty of an offence’.
74. See s 1(1) of the Clean Air Act 1993: ‘Dark smoke shall not be emitted from a chimney of any building, and if, on any day, dark smoke is so emitted, the occupier of the building shall be guilty of an offence’. The 2005 and 2006 anti smoking prohibitions may be viewed as a further measure to tackle air pollution, thus enhancing people's right to clean air in public spaces.
75. Smoking, Health and Social Care (Scotland) Act 2005, s 2(2), and Health Act 2006, s 7(4).
76. Husak, above n 3, p 137.
77. The fact that in the UK the NHS meets the bill for smoking related illnesses provides an additional reason for suggesting that there is a substantial state interest in such legislation, but the state's primary interest lies in the fact that the criminal law serves to protect citizens against harm – Husak himself notes that ‘the prevention of physical harm will qualify as compelling and, a fortiori, as substantial’: ibid, p 138.
78. Ibid, p 153.
79. Royal College of Physicians, above n 45, p 10.
80. Royal College of Physicians, above n 41, p 23.
81. Ibid, p xiv.
82. See ‘“Third hand smoke” could damage health’BBC News 9 February 2010, available at http://news.bbc.co.uk/1/hi/health/8503870.stm. The news report was based on M Sleiman et al ‘Formation of carcinogens indoors by surface mediated reactions of nicotine with nitrous acid, leading to potential thirdhand smoke hazards’Proceedings of the National Academy of Sciences (2010), available at http://www.pnas.org/content/107/15/6576.full.pdf+html.
83. It might be suggested that the prohibition should be extended to criminalise smoking at home in the presence of any non smoking third party, but adult non smokers could generally choose to leave the smoke filled environment, an option which the smoker's children do not have.
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88. Royal College of Physicians, above n 45, p 8.
89. Taxation of cigarettes led to an increase in price from £1.85 per packet in 1971 to £2.65 in 1995. This caused a per capita decrease in smoking from 15,000 to 10,000 cigarettes per annum: ‘Global pleas to raise smoking taxes’BBC News 9 August 2000, available at http://news.bbc.co.uk/1/hi/health/871951.stm. The current cost of a packet of 20 cigarettes is about £4.80.
90. See, eg, Husak, above n 3, p vi.
91. For England: Smoke free (Penalties and Discounted Amounts) Regulations 2007, SI 2007/764, reg 2(5). For Scotland: Prohibition of Smoking in Certain Premises (Scotland) Regulations, SSI 2006/90, reg 4(2)(b).
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109. As Persak has pointed out: ‘To propose a new incrimination is...the cheapest, quickest, most memorable, and media inviting act the Member of Parliament can do – the most efficient for a legislator (securing re election) and the least truly efficient ie problem solving’: above n 13, p 27).
110. Dripps, above n 13, at 11.
111. Ibid, at 12.
112. Ibid.
113. Mill, above n 6, p 9.