Monday, 1 March 2010

The Smoking Ban: former landlord jailed

The Health Act 2006 sets out to prohibit smoking in certain premises, places and vehicles.  A former landlord of a Bolton public house was fined for 4 offences of breaching his duty (under section 8) to prevent persons from smoking in the pub.  He appealed to the Crown Court but lost the appeal.  He has now been jailed for 6 months for non-payment of the fine of £3000 and costs which have taken the sum owed to almost £10,000.  The high level of costs is due to the fact that the prosecution was brought by the local council.  The Daily Mail (1st March) carried the story.  The legislation is rather convoluted and is backed up by various regulations.  Persons who smoke in smoke-free premises (places or vehicles) commit an offence (under section 7) but they are normally offered a fixed penalty notice.

It is beyond doubt that smoking is harmful to health and the legislation was generally welcomed by many people but criticised by many others.  It seems that this man has taken a view that this law is not justified.  He is paying a heavy price for his stance.  History is replete with people who have taken the stance that they will not obey what they see as an "unjust" law.  Is this an unjust law or is it a perfectly proper exercise of law-making powers?  The Old Holborn blog takes the view that the punishment is outrageous and the excellent CharonQC blog agrees.  Big Brother Watch sees the imprisonment as being out of proportion and they point out (accurately) that some offenders (even of violent offences) do not receive that level of punishment.  Of course, imprisonment is there as the ultimate sanction for enforcement of fines.


  1. This is an example of the unintended consequences principle - perhaps! For urinating in a doorway a man would usually receive a penalty notice for disorder - a fixed £80 and no criminal record. If the same man has an ASBO which prohibits this action specifically, he stands to receive a five year sentence. Same man, same act.

    I have no qualms whatsoever about imprisoning a fine defaulter. In cases like this (ie wilful refusal) I also ask the leagl advisor in open court whether I can deny the application for the fines to be lodged and have been told that I can. As this is somewhat draconian, it is a power I have exercised only once. That was appealed to the Crown Court but the appeal was withdrawn on the day of the intended hearing.

  2. I support the smoking ban, but I do have one or two qualms about some general issues which have come into play here.

    Firstly, costs often seem to be very high if offenders are deemed to be political offenders in some way. The cynic in me suspects that they are used as way to pad out the fine to a deterrent level without breaking the guidelines.

    Secondly, this guy was fined heavily based on his income, but then immediately lost his job due to his conviction. This is also a common occurence and is a very unfair part of the system of basing the fine on income. If someone's income drops so markedly, surely it would be more just to re-evaluate the remaining fine on the new income? This better matches the policy intention. Otherwise the person is not only punished twice, but punished squared, as teh fine then increases due to non-payment and the person faces bailiffs breaking in with even more disproportionate costs.

  3. Smoking, drinking, owning dogs are three examples of lawful activities. It could be argued that allowing drinking in places where the activity is prohibited eg a private club with no license operating 5 a side football pitches could be considered analogous or allowing dogs within a prohibited area are somewhat similar situations but where the penalties relate to society`s disapproval. It is impossible to reconcile in my opinion the level of retribution in this matter with the seriousness and effect of such transgression when compared eg to the disposal for no car insurance where those on benefits rarely receive fines more than £200. It is surely just heavy handed government authority at work and if that government were serious about reducing smoking and drinking it would tax both out of reach and lay its heavy handiness on the smugglers who would surely creep out to try and take advantage. This and all previous administrations have relied upon and are so reliant upon income received from the taxation of these products that it is political sophistry to punish on the one hand and count the lucre with the other. One day a government will be unable to ride these two horses simulataneously.

  4. What is the correct approach to civil disobedience?

    If the law is unjust it must be repealed, and a pardon given.

    If the law is right and just, it can be no mitigation that the motivation was political. To say otherwise is to bring the all law into dispute, as even the right to property, or to self-defence, are disputed politically. The crown must stand firm.

    This man did nothing wrong but disobey a bad law. It seems bad laws make hard cases, also.

  5. Rex_imperator - of course the sentence for breach of an ASBO has to be proportionate to the seriousness of the breach. Also, I am not at all sure about "denying an application for fines to be lodged" and don't see why you would wish to do this even if legally you can (which I would need to see authority for). A fine should not impose a financial burden on a person once released from imprisonment: R v McCormack 1976. [Fine enforcement is discussed at some length here].

    Tom (iow) - costs always appear higher when a non-CPS prosecutor is involved and even the CPS have increased their cost applications recently. [The decision on the actual amount awarded is for the court].

    At the time of imposing a fine for a conviction it is not always clear what (if any) impact the conviction will have on the offender's ability to pay. However, it is possible to return to court and for fines to be remitted due to change of circumstances. In my opinion, it would be good court practice to inform the offender of this but, to be frank, it is not usually done.

    Justice of the Peace - yes, the level of retribution is high in the Hogan case but he was found guilty of 4 offences. Also, the costs were increased because he appealed (and lost the appeal). However, the level of the fines compared to some other offending is interesting and this very point has been made by others. "Beer and cigs" will always be a favourite hit for Chancellors of all parties even if they are clamping down on their consumption!

    Ben - a big question! In my opinion the smaoking ban comes nowehere near justification for any form of civil disobedience. [Surely, the health risks of passive smoking are beyond doubt]. We are all supposed to obey the law made by our democratically elected parliament and that is so even if we personally dislike a particular law. Civil disobedience has been used as a form of non-violent protest - perhaps notably by Gandhi - see here. In democratic society there ought to be a kind of understanding between the citizen and the legislator in that the latter legislates for sound law which is evidence-based, seeks sensible objectives and which respects the rights and dignity of the citizen (including perhaps minorities). In return the citizen behaves responsibly and obeys the law. I don't really wish to pursue this issue any further just now but, one day, it could make an interesting post in itself.

  6. The health risks of passive smoking have been ridiculously exaggerated. Even if this were not so, there is no reason why any danger could not be a matter for mutual consent, as it is in many hazardous jobs.

    The smoking ban was neither evidence based nor respected the rights and dignities of the citizen.

    In your opinion, must the citizen accept every affront provided it is small? Or after how many can the citizen rightfully disobey?

  7. Ben - no simple answers I'm afraid. As I say, I may well return to the point of whether civil disobedience can ever be justified and, if so, when. I'm not a medical expert but surely the bulk of medical opinion is to the effect that passive smoking is harmful.

    I think that I agree that the government went for the most draconian option (i.e. a complete ban). There were other obvious possibilities such as "smoking rooms" which could have had large extractor fans etc. The staff of the pub. would still have been exposed to the risk.

    As ever, thanks for the debate.