Prisoner seeks judicial review of smoking rules in jail

William Gage, a murderer, has sought a judicial review of the question whether it is illegal to keep him in conditions exposing him to tobacco smoke.

Smoking is not illegal in prison cells because they are deemed to be private residences.

Mr Gage, 43, was handed a minimum 20 year sentence for shooting Justin McAlroy, 30, six times in Cambuslang, South Lanarkshire, in 2002.

He has complained repeatedly to authorities at HMP Shotts since 2004 that he is vulnerable to tobacco smoke.

The Court of Session will now determine whether it is unreasonable and unlawful to detain him in such conditions.

Counsel for Mr Gage, Christopher Pirie, told Lord Armstrong yesterday: “All he seeks is to be held in part of one of the 15 prisons the respondents (the Scottish ministers) control in which he is not exposed indoors to ETS .”

“The evidence shows the respondents have detained the petitioner for more than a decade in conditions they correctly believe unsafe, without looking for an alternative,” he told Lord Armstrong.

He added the detention was “an unreasonable exercise” of the Scottish government’s powers and drew an analogy with prisoners who won damages because they still had to slop out in prison.

The action claims that while other prisoners have smoked in accordance with the rules, the smoke has penetrated Mr Gage’s cell.